TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

SUBCHAPTER C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

DIVISION 4. PROVISION AND COORDINATION OF TREATMENT SERVICES

26 TAC §558.303

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §558.303, concerning Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement Texas Health and Safety Code §142.0062(a) amended by House Bill 797, 87th Legislature, Regular Session, 2021. Section 142.0062(a) allows a Home and Community Support Services Agency (HCSSA) to purchase, store, or transport for administering any vaccine approved, authorized for emergency use, or otherwise permitted by the United States Food and Drug Administration to treat or mitigate the spread of a communicable disease.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §558.303, Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs, allows a HCSSA to purchase, store, or transport for administration any vaccine approved, authorized for emergency use, or otherwise permitted by the United States Food and Drug Administration to treat or mitigate the spread of a communicable disease. The proposed amendment adds the word "household" to the list of entities that a HCSSA's registered or licensed vocational nurses may administer vaccine to. The proposed amendment requires a HCSSA to transport vaccines in a sealed portable container and requires a HCSSA to have policies and procedures that ensure the container is handled and stored properly in accordance with the vaccine manufacturer's instructions and guidance from the Centers for Disease Control and Prevention.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will not create a new rule;

(6) the proposed rule will expand existing rule;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rule.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Michelle Dionne-Vahalik, Associate Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public benefit will be improved health and safety of residents and individuals receiving services from a home and community support services agencies' programs.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because there is no additional cost to complying with the rule.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Tahoe Fintel, Senior Policy Specialist, at (512) 438-3161 in HHSC Regulatory Services Division.

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 21R091" in the subject line.

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Health and Safety Code §142.0011, which provides that the Executive Commissioner of HHSC shall adopt rules establishing minimum standards for acceptable quality of care provided to clients by HCSSAs.

The amendment implements Texas Government Code §531.0055 and Health and Safety Code §§142.0011 and 142.0062(a).

§558.303.Standards for Possession of Sterile Water or Saline, Certain Vaccines or Tuberculin, and Certain Dangerous Drugs.

An agency that possesses sterile water or saline, certain vaccines or tuberculin, or certain dangerous drugs, as specified by this section, must comply with the provisions of this section.

(1) Possession of sterile water or saline. An agency or its employees, who are RNs or LVNs, may purchase, store, or transport for the purpose of administering to their home health or hospice clients under physician's orders:

(A) sterile water for injection and irrigation; and

(B) sterile saline for injection and irrigation.

(2) Possession of certain vaccines or tuberculin.

(A) An agency or its employees, who are RNs or LVNs, may purchase, store, or transport for administering to the agency's employees, home health or hospice clients, or client family and household members under physician's standing orders the following dangerous drugs:

(i) hepatitis B vaccine;

(ii) influenza vaccine;

(iii) tuberculin purified protein derivative for tuberculosis testing; [and]

(iv) pneumococcal polysaccharide vaccine; and

(v) any other vaccine approved, authorized for emergency use, or otherwise permitted for use by the United States Food and Drug Administration to treat or mitigate the spread of a communicable disease, as defined by Texas Health and Safety Code §81.003.

(B) An agency that purchases, stores, or transports a vaccine or tuberculin under this section must ensure that any standing order for the vaccine or tuberculin:

(i) is signed and dated by the physician;

(ii) identifies the vaccine or tuberculin covered by the order;

(iii) indicates that the recipient of the vaccine or tuberculin has been assessed as an appropriate candidate to receive the vaccine or tuberculin and has been assessed for the absence of any contraindication;

(iv) indicates that appropriate procedures are established for responding to any negative reaction to the vaccine or tuberculin; and

(v) orders that a specific medication or category of medication be administered if the recipient has a negative reaction to the vaccine or tuberculin.

(C) An agency or the agency's authorized employees may purchase, store, or transport vaccines or tuberculin in a sealed portable container only if the agency has established policies and procedures to ensure that:

(i) the container is handled properly with respect to storage, transportation, and temperature stability according to manufacturer's instructions; and

(ii) the agency adheres to guidance from the Centers for Disease Control and Prevention and the Texas Health and Human Services Commission.

(3) Possession of certain dangerous drugs.

(A) In compliance with Texas Health and Safety Code §142.0063, an agency or its employees, who are RNs or LVNs, may purchase, store, or transport for the purpose of administering to their home health or hospice patients, in accordance with subparagraph (C) of this paragraph, the following dangerous drugs:

(i) any of the following items in a sealed portable container of a size determined by the dispensing pharmacist:

(I) 1,000 milliliters of 0.9 percent sodium chloride intravenous infusion;

(II) 1,000 milliliters of 5.0 percent dextrose in water injection; or

(III) sterile saline; or

(ii) not more than five dosage units of any of the following items in an individually sealed, unused portable container:

(I) heparin sodium lock flush in a concentration of 10 units per milliliter or 100 units per milliliter;

(II) epinephrine HCI solution in a concentration of one to 1,000;

(III) diphenhydramine HCI solution in a concentration of 50 milligrams per milliliter;

(IV) methylprednisolone in a concentration of 125 milligrams per two milliliters;

(V) naloxone in a concentration of one milligram per milliliter in a two-milliliter vial;

(VI) promethazine in a concentration of 25 milligrams per milliliter;

(VII) glucagon in a concentration of one milligram per milliliter;

(VIII) furosemide in a concentration of 10 milligrams per milliliter;

(IX) lidocaine 2.5 percent and prilocaine 2.5 percent cream in a five-gram tube; or

(X) lidocaine HCL solution in a concentration of 1 percent in a two-milliliter vial.

(B) An agency or the agency's authorized employees may purchase, store, or transport dangerous drugs in a sealed portable container only if the agency has established policies and procedures to ensure that:

(i) the container is handled properly with respect to storage, transportation, and temperature stability;

(ii) a drug is removed from the container only on a physician's written or oral order;

(iii) the administration of any drug in the container is performed in accordance with a specific treatment protocol; and

(iv) the agency maintains a written record of the dates and times the container is in the possession of an RN or LVN.

(C) An agency or the agency's authorized employee who administers a drug listed in subparagraph (A) of this paragraph may administer the drug only in the client's residence, under physician's orders, in connection with the provision of emergency treatment or the adjustment of:

(i) parenteral drug therapy; or

(ii) vaccine or tuberculin administration.

(D) If an agency or the agency's authorized employee administers a drug listed in subparagraph (A) of this paragraph, pursuant to a physician's oral order, the agency must receive a signed copy of the order:

(i) not later than 24 hours after receipt of the order, reduce the order to written form and send a copy of the form to the dispensing pharmacy by mail or fax transmission; and

(ii) not later than 20 days after receipt of the order, send a copy of the order, as signed by and received from the physician, to the dispensing pharmacy.

(E) A pharmacist that dispenses a sealed portable container under this subsection will ensure that the container:

(i) is designed to allow access to the contents of the container only if a tamper-proof seal is broken;

(ii) bears a label that lists the drugs in the container and provides notice of the container's expiration date, which is the earlier of:

(I) the date that is six months after the date on which the container is dispensed; or

(II) the earliest expiration date of any drug in the container; and

(iii) remains in the pharmacy or under the control of a pharmacist, RN, or LVN.

(F) If an agency or the agency's authorized employee purchases, stores, or transports a sealed portable container under this subsection, the agency must deliver the container to the dispensing pharmacy for verification of drug quality, quantity, integrity, and expiration dates not later than the earlier of:

(i) the seventh day after the date on which the seal on the container is broken; or

(ii) the date for which notice is provided on the container label.

(G) A pharmacy that dispenses a sealed portable container under this section is required to take reasonable precautionary measures to ensure that the agency receiving the container complies with subparagraph (F) of this paragraph. On receipt of a container under subparagraph (F) of this paragraph, the pharmacy will perform an inventory of the drugs used from the container and will restock and reseal the container before delivering the container to the agency for reuse.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104356

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


CHAPTER 570. LONG-TERM CARE PROVIDER RULES DURING A CONTAGIOUS DISEASE OUTBREAK, EPIDEMIC, OR PANDEMIC

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code, Title 26, Part 1, new Chapter 570, consisting of §§570.1, 570.2, 570.101, 570.103, 570.105, 570.107, 570.109, 570.111, 570.113, 570.201, 570.203, 570.205, 570.207, 570.209, 570.211, 570.301, 570.302, 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, 570.315, 570.317, 570.318, 570.319, 570.321, 570.323, 570.325, 570.327, 570.329, 570.401, 570.403, 570.405, 570.407, 570.409, 570.411, 570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.513, 570.514, 570.515, 570.517, 570.601, 570.603, 570.605, 570.607, 570.609, 570.611, 570.613, 570.701, 570.703, 570.705, 570.707, 570.709, 570.711, 570.713, 570.801, 570.802, 570.803, 570.805, and 570.807, concerning Subchapter A, Introduction; Subchapter B, Assisted Living Facilities; Subchapter C, Day Activity and Health Services; Subchapter D, Home and Community Support Services Agencies; Subchapter E, Prescribed Pediatric Extended Care Centers; Subchapter F, Nursing Facilities; Subchapter G, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions; Subchapter H, Home and Community-Based Services; and Subchapter I, Texas Home Living.

BACKGROUND AND PURPOSE

The purpose of the proposal is to create provider rules that apply to Assisted Living Facilities (ALFs), Day Activity Health Services (DAHS), Home and Community Support Services Agencies (HCSSAs), Prescribed Pediatric Extended Care Centers (PPECCs), Nursing Facilities (NFs), Intermediate Care Facilities for Individuals with and Intellectual Disability or Related Conditions (ICF/IIDs), Home and Community-based Services (HCS) program providers, and Texas Home Living (TxHmL) program providers during a contagious disease outbreak, epidemic, or pandemic.

The proposed rules implement Texas Health and Safety Code, Chapter 260B, Right to Essential Caregiver Visits for Certain Residents, created by Senate Bill (S.B.) 25, 87th Legislature, Regular Session, 2021. Chapter 260B states that all residents of an ALF, NF or ICF/IID and individuals receiving services through an HCS program provider in a residence have the right to designate an essential caregiver and have essential caregiver visits. A facility or program provider may not prohibit in-person visitation with an essential caregiver, except for certain limited periods of time as provided in Chapter 260B.

The proposed rules also implement Texas Health and Safety Code, Chapter 260C, In-Person Visitation with Religious Counselor, created by S.B. 572, 87th Legislature, Regular Session, 2021. Chapter 260C protects the religious liberty of each individual or resident of an HCSSA, NF, or ALF by prohibiting a HCSSA, NF, or ALF from preventing a resident or client from receiving in-person visitation with a religious counselor during a public health emergency unless there is a federal law or a federal agency that prohibits in-person visitation during that period.

The proposed rules were developed based on issues and concerns that arose during the COVID-19 pandemic and lessons learned that might be helpful to providers. The intent is to provide minimum standards for what a facility, DAHS, HCSAA, PPECC, and program provider must do during a contagious disease outbreak, epidemic, or pandemic related to visitation, testing, screening, reporting, quarantining or isolating of residents and individuals, and other infection prevention and control measures.

SECTION-BY-SECTION SUMMARY

Proposed new §570.1, Purpose and Application, states that proposed new Chapter 570 applies to all long-term care providers, including: ALFs, Day Activity Health Services (DAHS), HCSSAs, Prescribed Pediatric Extended Care Centers (PPECC), NFs, ICF/IIDs, HCS providers and TxHmL providers. The chapter requires all providers to comply with the chapter during a contagious disease outbreak, epidemic, or pandemic unless an executive order from the Governor of Texas, the President of the United States, or another applicable authority is more restrictive than these rules.

Proposed new §570.2, Definitions, provides definitions related to the new rules and includes clinical terms related to a contagious disease, outbreak, epidemic, or pandemic.

Proposed new §570.101, Emergency Response to Outbreak, Epidemic, or Pandemic, requires an ALF to regularly check for and implement federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic an ALF is required to maintain infection prevention and control measures. An ALF must put a protocol in place for receiving resident deliveries and develop communication plans for communicating with current and prospective residents, resident representatives, emergency contacts, and ALF staff.

Proposed new §570.103, Testing, describes an ALF's testing and monitoring activities that must take place during a contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.105, Reporting, requires an ALF to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.107, Screening, provides screening criteria requirements, and requires an ALF to screen all visitors prior to them entering a facility, except emergency services personnel during an emergency. An ALF must keep a visitor log and post signage at all entrances of a facility prohibiting entry prior to being screened. Staff who do not pass screening must leave the facility. Residents who do not pass screening must be quarantined and monitored. The facility must allow those providing critical assistance including essential caregiver visitors into the facility if they pass the screening criteria.

Proposed new §570.109, Staff Requirements, requires an ALF to maintain adequate staffing levels and have a staffing plan in place to ensure staff are trained and supervised. At least one staff member must be responsible for infection control protocol. The ALF must document training was provided to staff about providing care to residents in isolation or quarantine, proper donning and doffing of PPE, disinfecting procedures, emergency preparedness plans, and other infection control plans.

Proposed new §570.111, Visitation, permits an ALF to change its visitation policies and procedures during a contagious disease outbreak, epidemic, or pandemic in response to directives from DSHS or HHSC. However, the new section prohibits an ALF from adopting visitation policies and procedures that are more restrictive than these directives or executive or local orders. The new section also requires an ALF to permit clergy, religious counselor, and end-of-life visits and allows an ALF to permit salon services visits. An ALF must adopt policies and procedures for in-person visitation with a religious counselor that comply with the provisions in this section. If an ALF allows salon services visits, the ALF must establish policies and procedures that provide conditions for a salon services visit to occur. Finally, the new section requires an ALF to immediately communicate to the resident representative any changes in a resident's condition that would qualify the resident for end of life visits.

Proposed new §570.113, Essential Caregiver Visits, requires an ALF to permit essential caregiver visits. It requires a facility to inform the resident of the right to appeal a facility's revocation of a person's designation as an essential caregiver.

Proposed new §570.201, Emergency Response to Outbreak, Epidemic, or Pandemic, requires a DAHS to regularly check for and implement federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a DAHS is required to maintain infection prevention and control measures. A DAHS must put a protocol in place for receiving resident deliveries and develop communication plans for communicating with current and prospective residents, resident representatives, emergency contacts, and DAHS staff.

Proposed new §570.203, Monitoring, requires a DAHS to monitor clients and staff for signs and symptoms, monitor staff for possible exposure, and activate outbreak infection control measures if a positive case is identified in a client or staff member.

Proposed new §570.205, Reporting, requires a DAHS to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the outbreak, epidemic, or pandemic.

Proposed new §570.207, Screening, provides screening criteria requirements, and requires a DAHS to screen all visitors prior to them entering a facility, except emergency services personnel during an emergency. The proposed new rule also requires that the facility keep a screening log. Staff who do not pass screening must leave the facility. Clients who do not pass screening must be quarantined and monitored. The facility must allow essential caregiver visitors into the facility, if they pass the screening criteria.

Proposed new §570.209, Staff Requirements, requires a DAHS to maintain adequate staffing levels and have a staffing plan in place to ensure staff are trained and supervised. At least one staff member must be responsible for infection control protocol. The DAHS must document training was provided to staff about providing care to residents in isolation or quarantine, proper donning and doffing of PPE, disinfecting procedures, emergency preparedness plans, and other infection control plans.

Proposed new §570.211, Visitation, requires a DAHS to permit clergy or religious counselor visits. It also permits a DAHS' visitation policies and procedures to change in response to a public health emergency, requires visitation procedures to conform to any guidance or directives issued by the Centers for Disease Control and Prevention (CDC), HHSC, or DSHS.

Proposed new §570.301, Emergency Response to Outbreak, Epidemic, or Pandemic, requires a HCSSA to regularly check for and implement federal, state, and local guidance during an outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a HCSSA is required to maintain infection prevention and control measures. A HCSSA must put a protocol in place for receiving deliveries and develop communication plans for communicating with current and prospective clients, client representatives, emergency contacts, and HCSSA staff.

Proposed new §570.302, Documentation of Physician's or Practitioner's Signatures, requires an HCSSA to document efforts to obtain a physician or practitioner's signature of verbal orders and plans of care.

Proposed new §570.303, Testing, describes the testing and monitoring activities that must take place during a contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.305, Reporting, requires an HCSSA to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.307, Screening, provides screening criteria requirements, and requires an HCSSA to screen all staff at the beginning of each workday or shift prior to staff conducting a home visit. Staff who do not pass screening are prohibited from conducting a home visit. An HCSSA must document each required screening.

Proposed new §570.309, Staff Requirements, requires an HCSSA to maintain adequate staffing levels and have a staffing plan in place to ensure staff are trained and supervised. At least one staff member must be responsible for infection control protocol. The HCSSA must document training was provided to staff about providing care to residents in isolation or quarantine, proper donning and doffing of PPE, disinfecting procedures, emergency preparedness plans, and other infection control plans.

Proposed new §570.311, Determining Essential Visit, requires an HCSSA to determine if a scheduled home visit is an essential visit.

Proposed new §570.313, Supervisory Visits by Telecommunication, permits a parent agency administrator or alternate administrator, supervising nurse or alternate supervising nurse, to make the monthly supervisory visit through virtual communication, such as phone or videoconference.

Proposed new §570.315, Client Symptoms, requires an HCSSA to coordinate care if a home health, hospice, or personal assistance services client reports symptoms associated with the contagious disease that caused an outbreak, epidemic, or pandemic.

Proposed new §570.317, Emergency Response to Outbreak, Epidemic, or Pandemic for Hospice Inpatient Unit, requires a hospice agency operating an inpatient hospice unit to regularly check for and implement federal, state, and local guidance during an outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a hospice inpatient unit is required to maintain infection prevention and control measures. A hospice inpatient unit must put a protocol in place for receiving deliveries and develop communication plans for communicating with current and prospective clients, client representatives, emergency contacts, and hospice inpatient unit staff.

Proposed new §570.318, Testing, describes the testing and monitoring activities that must take place during a contagious disease outbreak, epidemic, or pandemic. A hospice agency operating an inpatient hospice facility must develop protocol for clients and staff who refuse testing.

Proposed new §570.319, Reporting, requires a hospice agency operating an inpatient hospice facility to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.321, Screening, provides screening criteria requirements, and requires a hospice agency operating an inpatient hospice facility to screen all staff at the beginning of each workday or shift prior to staff conducting a home visit. Staff who do not pass screening are prohibited from conducting a home visit. A hospice agency operating an inpatient hospice facility must document each required screening.

Proposed new §570.323, Staff Requirements, requires the hospice agency operating a hospice inpatient unit to ensure staffing levels are adequate to meet the needs of all clients, including those in isolation and quarantine. Each hospice agency operating a hospice inpatient unit is required to have the infection control coordinator develop and review infection control protocols. Each hospice agency operating a hospice inpatient unit is required to document training was provided to staff about providing care to residents in isolation or quarantine, proper donning and doffing of PPE, disinfecting procedures, emergency preparedness plans, and other infection control plans.

Proposed new §570.325, Visitation, permits a hospice agency operating a hospice inpatient unit to change its visitation policies and procedures during a contagious disease outbreak, epidemic, or pandemic in response to directives from DSHS or HHSC. The new section also requires a hospice operating a hospice inpatient unit to permit clergy, religious counselor, and end-of-life visits and allows a hospice agency operating a hospice inpatient unit to permit salon services visits. A hospice operating an inpatient hospice unit must adopt policies and procedures for in-person visitation with a religious counselor that comply with the provisions in this section. If a hospice operating an inpatient hospice unit allows salon services visits, the hospice operating an inpatient hospice unit must establish policies and procedures that provide conditions for a salon services visit to occur. Finally, the new section requires a hospice operating an inpatient hospice unit to immediately communicate to the client representative any changes in a client's condition that would qualify the client for end of life visits.

Proposed new §570.327, Essential Caregiver Visits, requires that a hospice operating an inpatient hospice unit permit essential caregiver visits. A hospice operating an inpatient hospice unit must develop procedures to enable physical contact between the client and the essential caregiver. The hospice operating an inpatient hospice unit may revoke an essential caregiver designation if the caregiver violates safety protocols. Within 24 hours of a revocation, the hospice agency operating an inpatient hospice unit must inform the client of his or her right to appeal the revocation.

Proposed new §570.329, Temporary Partial or Full Closure to Allow for Space to Be Used to Treat Non-Hospice Clients in an Emergency, permits a hospice agency operating an inpatient unit to temporarily fully or partially close to allow space to be used by a hospital for overflow services to infectious patients who are not hospice clients.

Proposed new §570.401, Emergency Response to Outbreak, Epidemic, or Pandemic, requires a PPECC to regularly check for and implement federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a PPECC is required to maintain infection prevention and control measures. A PPECC must put a protocol in place for receiving deliveries and develop communication plans for communicating with current and prospective minors, minor's representatives, emergency contacts, and PPECC staff.

Proposed new §570.403, Testing, requires a PPECC to conduct routine testing of all staff and minors per HHSC or DSHS issued guidance during a contagious disease outbreak, epidemic, or pandemic. A PPECC must monitor minors and staff for signs and symptoms, possible exposure, and activate outbreak infection control measures if a positive case is identified in a minor or staff.

Proposed new §570.405, Reporting, requires a PPECC to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.407, Screening, a PPECC must screen all visitors prior to allowing them into the center, except emergency services personnel entering the center in an emergency. Visitors showing signs and symptoms must leave the center. The PPECC is required to keep a screening log and document each person's screening information who enters the building. A PPECC must screen all staff at the beginning of each shift, prior to entering the center; staff who do not pass must leave the center. The PPECC must screen minors in accordance with any HHSC or DSHS issued guidance.

Proposed new §570.409, Staff Requirements, requires a PPECC to ensure staffing levels are adequate to meet the needs of all minors. A PPECC must have a staffing plan in place that includes a staffing contingency plan in the event multiple employees are out due to illness. The proposed new rule also requires a PPECC to have at least one staff member responsible for infection control protocol. A PPECC must document training was provided to staff about providing care to residents in isolation or quarantine, proper donning and doffing of PPE, disinfecting procedures, emergency preparedness plans, and other infection control plans.

Proposed new §570.411, Visitation, requires a PPECC to permit clergy or spiritual counselor to visit a minor.

Proposed new §570.501, Planning for Outbreak, Epidemic, or Pandemic, requires a NF to update infection control plans to include information specific to the emerging contagious disease, outbreak, epidemic, or pandemic, including addressing preparation by maintaining at least two weeks of PPE supplies, training staff on infection control plans, and dedicating staff to various resident populations. The infection control plan must include staff training to address which PPE is appropriate for use in each area of the facility, donning and doffing of PPE, cleaning and disinfecting policies and procedures, and contingency plans for staffing shortages due to employee illness. The infection control plan must address mitigation through isolation and quarantine plans and designating staff to work an assigned cohort. The infection control plan must also include testing procedures, protecting resident rights, and promoting socialization and preventing isolation. Proposed new §570.501 also requires a NF to ensure that its emergency preparedness plans address emerging contagious diseases, epidemics, and pandemics.

Proposed new §570.503, Emergency Response to Outbreak, Epidemic, or Pandemic, requires a NF to have a plan to check for and implement federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a NF is required to maintain infection prevention and control measures. Proposed new §570.503 also requires a NF put a protocol in place for receiving resident deliveries and develop communication plans for communicating with current and prospective residents, resident representatives, emergency contacts, and NF staff.

Proposed new §570.505, Testing, requires a NF to conduct routine testing of all staff and residents during a contagious disease outbreak, epidemic, or pandemic. During a facility outbreak, the NF is required to test all residents and staff with signs and symptoms of the illness. The NF must also develop and implement protocols for residents and staff who refuse testing. During a contagious disease outbreak, epidemic, or pandemic the NF must monitor residents and staff for signs and symptoms, or possible exposure. The NF must activate outbreak infection control measures if a positive case is identified, a resident or staff exhibits related symptoms, or there is a suspected or known exposure.

Proposed new §570.507, Reporting, requires a NF to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic. The NF must also inform residents, resident representatives, and families of residents about the occurrence of a positive case of the contagious disease among residents or staff by 5:00 p.m. the next calendar day following the occurrence.

Proposed new §570.509, Screening, requires a NF, during the contagious disease outbreak, epidemic, or pandemic, to screen all visitors prior to entering the facility except emergency services personnel entering during an emergency. Visitors who fail the screening must not enter the NF. A NF must screen all staff at the beginning of each shift prior to entering the facility. Staff that do not pass screening must leave the NF immediately. A NF must screen residents at least three times per day. Residents who do not pass screening must be quarantined immediately, monitored, and tested in accordance with any guidance issued by the CDC, HHSC, or DSHS. A resident has the right to refuse testing. The facility must allow those providing critical assistance including essential caregiver visitors into the facility if they pass the screening criteria. Proposed new §570.511, Staff Requirements, a NF is required to ensure staffing levels meet the needs of all residents. A NF must have a staffing plan in place that ensures staff are designated to each area of the facility, ensures staff are supervised in each area of the facility, ensures staff who work at multiple facilities are assigned to the same cohort in each facility during an outbreak, epidemic, or pandemic, and has a contingency plan in the event multiple staff are out due to illness. A NF is required to document that training was provided to each employee regarding providing care to residents in isolation or quarantine, the proper use of PPE, proper cleaning and disinfecting procedures, the facility infection control plans, the emergency preparedness plans, standard assessment protocols, and enhanced assessment protocols.

Proposed new §570.513, Visitation, permits a NF to change its visitation policies and procedures during a contagious disease outbreak, epidemic, or pandemic in response to directives from the Centers Medicare and Medicaid Services, DSHS, or HHSC. However, the new section prohibits a NF from adopting visitation policies and procedures that are more restrictive than these directives or executive or local orders. The new section also requires a NF to permit clergy, religious counselor, and end-of-life visits and allows a NF to permit salon services visits. A NF must adopt policies and procedures for in-person visitation with a religious counselor that comply with the provisions in this section. If a NF allows salon services visits, the NF must establish policies and procedures that provide conditions for a salon services visit to occur. Finally, the new section requires a NF to immediately communicate to the resident representative any changes in a resident's condition that would qualify the resident for end of life visits.

Proposed new §570.514, Essential Caregiver Visits, requires a facility to permit essential caregiver visits. A facility must allow essential caregiver visits for at least two hours per day and develop procedures to enable physical contact between the resident and the essential caregiver. The facility may revoke an essential caregiver designation if the caregiver violates a facility's safety protocols. If a facility revokes an essential caregiver designation, the resident or the resident's legally authorized representative has a right to designate a new essential caregiver immediately. Within 24 hours of a revocation, the facility must inform the resident of their right to appeal the revocation.

Proposed new §570.515, Resident Focused Assessment or Monitoring, requires a NF to continue conducting resident assessments during a contagious disease outbreak, epidemic, or pandemic and increase the frequency of assessments when a positive case of the contagious disease is identified in the facility. A NF is required to update the baseline or comprehensive care plan for a resident during a contagious disease outbreak, epidemic, or pandemic and must address a resident's physical, mental and psychosocial needs and both virtual visitation and in-person visitation.

Proposed new §570.517, Continuity of Facility Operations, requires a NF to designate isolation and quarantine areas for residents with contagious disease or unknown status, and those exhibiting symptoms. Requires a NF to designate an area for residents who do not require isolation or quarantine. Requires a NF to designate an area for the storage of PPE, an area for donning PPE, and for doffing PPE. Requires a NF to ensure space for physical distancing needs related to the outbreak, epidemic, or pandemic. Requires a NF to issue specific guidance related to facility activities and establish communal dining precautions related to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.601, Emergency Response to Outbreak, Epidemic, or Pandemic, requires an ICF/IID to have a plan to check for federal, state, and local guidance during an outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic an ICF/IID is required to maintain infection prevention and control measures. An ICF/IID must put a protocol in place for receiving deliveries and develop communication plans for communicating with individuals, individual's representatives, emergency contacts, and ICF/IID staff.

Proposed new §570.603, Testing, requires an ICF/IID to develop testing protocols to test staff and individuals during an outbreak, epidemic, or pandemic. An ICF/IID must develop protocol for staff and individuals who refuse testing. An ICF/IID is required to monitor individuals and staff for: signs, symptoms, and possible exposures. An ICF/IID is required to activate infection control measures if a positive case is identified, an individual or staff are exhibiting symptoms, or there is a suspected or known exposure to a positive case.

Proposed new §570.605, Reporting, requires an ICF/IID to report new positive cases of the disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the outbreak, epidemic, or pandemic.

Proposed new §570.607, Screening, requires an ICF/IID to screen all visitors prior to entering the facility except emergency services personnel during an emergency. Visitors who fail screening must leave and reschedule their visit. An ICF/IID must keep a visitor screening log and document each screening. Requires an ICF/IID to screen each staff member at the beginning of each shift, prior to entering the facility; staff who fail screening must leave the facility. Individuals must be screened in accordance with any HHSC or DSHS issued guidance; individuals who fail screening must be quarantined and monitored. The facility must allow those providing critical assistance including essential caregiver visitors into the facility if they pass the screening criteria.

Proposed new §570.609, Staff Requirements, requires an ICF/IID to ensure staffing levels meet the needs of all individuals and have a staffing plan in place to make sure staff are trained to provide care to individuals in their assigned cohort, staff are supervised in each cohort of the facility, and includes a staffing contingency plan in the event multiple employees are out due to illness. An ICF/IID is required to have at least one staff member responsible for infection control. An ICF/IID must document that training was provided to each employee regarding providing care to residents in isolation or quarantine, the proper use of PPE, proper cleaning and disinfecting procedures, the facility infection control plans, the emergency preparedness plans, standard assessment protocols, and enhanced assessment protocols.

Proposed new §570.611, Visitation, permits an ICF to change its visitation policies and procedures during a contagious disease outbreak, epidemic, or pandemic in response to directives from the DSHS or HHSC. The new section also requires an ICF to permit clergy, religious counselor, and end-of-life visits and allows an ICF to permit salon services visits. An ICF must adopt policies and procedures for in-person visitation with a religious counselor that comply with the provisions in this section. If an ICF allows salon services visits, the ICF must establish policies and procedures that provide conditions for a salon services visit to occur. Finally, the new section requires an ICF to immediately communicate to the resident representative any changes in a resident's condition that would qualify the resident for end of life visits.

Proposed new §570.613, Essential Caregiver Visits, requires a facility to permit essential caregiver visits. A facility must develop procedures to enable physical contact between the individual and the essential caregiver. The facility may revoke an essential caregiver designation if the caregiver violations a facility's safety protocols. Within 24 hours of a revocation, the facility must inform the individual of their right to appeal the revocation.

Proposed new §570.701, Emergency Response to Outbreak, Epidemic, or Pandemic, requires an HCS program provider to have a plan to check for federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic an HCS program provider is required to maintain infection prevention and control measures. An HCS program provider is required to have protocol in place for residences that receive deliveries from vendors, family members, and visitors. The proposed new rule also requires an HCS program provider to have a communication plan to communicate updates and information to individuals or an individual's legally authorized representative (LAR).

Proposed new §570.703, Testing, requires an HCS program provider to develop a testing strategy if testing is required by the CDC, HHSC, or DSHS. An HCS program provider is required to monitor individuals and staff for signs, symptoms, and possible exposures. An HCS program provider is required to activate infection control measures if a positive case is identified, an individual or staff are exhibiting symptoms, or there is a suspected or known exposure to a positive case.

Proposed new §570.705, Reporting, requires an HSC program provider to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the contagious disease outbreak, epidemic, or pandemic.

Proposed new §570.707, Screening, requires an HCS program provider to screen all visitors outside the residence prior to allowing them to enter, except emergency services personnel responding to an emergency. Visitors who fail screening must leave the residence. Staff who fail screening must leave the residence. An HCS program provider is required to permit an individual who lives in the residence, to enter the residence, even if the individual meets any of the screening criteria. An HCS program provider must allow those providing critical assistance including essential caregiver visitors into the residence if they pass the screening criteria.

Proposed new §570.709, Staff Requirements, requires an HCS program provider to have adequate staffing levels to meet the needs of individuals, including those in isolation or quarantine. An HCS program provider is required to have a staffing plan in place that: ensures staff are trained to provide care to individuals and includes a contingency plan in the event multiple employees are out due to illness. An HCS program provider must have at least one staff member responsible for infection control protocol. An HCS program provider is required to document that training was provided to each employee regarding providing care to residents in isolation or quarantine, the proper use of PPE, proper cleaning and disinfecting procedures, the facility infection control plans, the emergency preparedness plans, standard assessment protocols, and enhanced assessment protocols.

Proposed new §570.711, Visitation, permits a program provider to change its visitation policies and procedures during a contagious disease outbreak, epidemic, or pandemic in response to directives from DSHS or HHSC. The new section requires a program provider to permit clergy, religious counselor, and end-of-life visits and allows a program provider to permit salon services visits. A program provider must adopt policies and procedures for in-person visitation with a religious counselor that comply with the provisions in this section. If a program provider allows salon services visits, the program provider must establish policies and procedures that provide conditions for a salon services visit to occur. Finally, the new section requires a program provider to immediately communicate to the individual's representative any changes in an individual's condition that would qualify the individual for end of life visits.

Proposed new §570.713, Essential Caregiver Visits, requires a program provider to permit essential caregiver visits. A program provider must develop procedures to enable physical contact between the individual and the essential caregiver. The facility may revoke an essential caregiver designation if the caregiver violations a facility's safety protocols. Within 24 hours of a revocation, the program provider must inform the individual of their right to appeal the revocation.

Proposed new §570.801, Emergency Response to Outbreak, Epidemic, or Pandemic, requires a TxHmL program provider to have a plan to check for federal, state, and local guidance during a contagious disease outbreak, epidemic, or pandemic. During a contagious disease outbreak, epidemic, or pandemic a TxHmL program provider is required to maintain infection prevention and control measures. A TxHmL program provider must have protocol in place for residences that receive deliveries from vendors, family members, and visitors. A TxHmL program provider is required to have a communication plan to communicate updates and information to individuals or an individual's LAR.

Proposed new §570.802, Testing, requires a program provider to have a testing strategy for staff and individuals, if testing is available and is required.

Proposed new §570.803, Reporting, requires a TxHmL program provider to report new positive cases of the contagious disease that is the basis of the outbreak, epidemic, or pandemic that are identified to HHSC in accordance with any guidance that HHSC or the Texas Department of State Health Services (DSHS) issues in relation to the outbreak, epidemic, or pandemic.

Proposed new §570.805, Screening, requires a TxHmL program provider to screen all individuals and staff prior to providing services to an individual. If an individual fails screening, the service provider must not provide services and must notify the program provider. If a staff member fails screening, they must not provide services and must notify the program provider.

Proposed new §570.807, Staff Requirements, requires a TxHmL program provider to have adequate staffing levels to meet the needs of individuals, including those in isolation or quarantine. A TxHmL program provider must have a staffing plan in place that: ensures staff are trained to provide care to individuals and includes a contingency plan in the event multiple employees are out due to illness. A TxHmL program provider is required to have at least one staff member responsible for infection control protocol. The proposed new rule also requires a TxHmL program provider to document that training was provided to each employee regarding providing care to residents in isolation or quarantine, the proper use of PPE, proper cleaning and disinfecting procedures, the facility infection control plans, the emergency preparedness plans, standard assessment protocols, and enhanced assessment protocols.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create a new rule;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas, do not impose a cost on regulated persons, and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Michelle Dionne-Vahalik, Associate Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved health and safety of residents and individuals in long-term care facilities or receiving long-term care services during a contagious disease outbreak, epidemic, or pandemic by providing long-term care providers with infection prevention and control measures to take during a contagious disease outbreak, epidemic, or pandemic.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no additional costs imposed.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Tahoe Fintel, Senior Policy Specialist, at (512) 438-3161 in HHSC Regulatory Services Division.

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 21R091" in the subject line.

SUBCHAPTER A. INTRODUCTION

26 TAC §570.1, §570.2

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.1.Purpose and Application.

(a) For the purposes of this chapter, a facility includes:

(1) a prescribed pediatric extended care center (PPECC) licensed under Chapter 550 of this title (relating to Licensing Standards for Prescribed Pediatric Extended Care Centers);

(2) an intermediate care facility for individuals licensed under Chapter 551 of this title (relating to Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions), or exempt from licensure under Texas Health and Safety Code §252.003;

(3) an assisted living facility licensed under Chapter 553 of this title (relating to Licensing Standards for Assisted Living Facilities);

(4) a nursing facility licensed under Chapter 554 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification);

(5) a home and community support services agency licensed under Chapter 558 of this title (relating to Licensing Standards for Home and Community Support Services Agencies);

(6) a day activity and health services facility licensed under Chapter 559 of this title (relating to Day Activity and Health Services Requirements);

(7) a home and community-based services program provider under Texas Administrative Code (TAC) Title 40, Chapter 9 (relating to Intellectual Disability Services--Medicaid State Operating Agency Responsibilities); or

(8) a Texas Home Living program provider under 40 TAC Chapter 9.

(b) A facility must comply with this chapter, which is activated when there is a contagious disease outbreak, epidemic, or pandemic among the staff or persons receiving services from the facility. A facility must develop all required policies and procedures prior to activation of this chapter, which must be implemented when the chapter is activated. Facilities must comply with guidance issued by the Centers for Disease Control and Prevention, Centers for Medicare and Medicaid Services, Texas Health and Human Services Commission, and Texas Department of State Health Services related to the outbreak, epidemic, or pandemic.

(c) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this rule or any minimum standard relating to a facility, the facility must comply with the executive order or other direction.

§570.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Airborne Precautions--Type of transmission-based precautions for persons known or suspected to be infected with pathogens transmitted by the airborne route. Airborne precautions are based on guidance issued by the Centers for Disease Control and Prevention.

(2) Assisted Living Facility (ALF)--A facility licensed under Texas Health and Safety Code, Chapter 247.

(3) CDC--The Centers for Disease Control and Prevention.

(4) Clergy--A person ordained for religious duty.

(5) Client--

(A) For a Home and Community Support Services Agency (HCSSA), this term means:

(i) a person receiving home health, hospice, or personal assistance services from a HCSSA; and

(ii) the family of a person receiving hospice services from a HCSSA.

(B) For a day activity and health services (DAHS), this term means a person receiving care in the DAHS facility.

(6) Cohort--A group of persons placed in rooms, halls, or sections of a facility with others who have the same positive, negative, or unknown status for an infectious disease; or the act of grouping persons with other persons who have the same status for a contagious disease.

(7) Contact precautions--The type of transmission-based precautions used for clients, individuals, or residents with a known or suspected infection that represents an increased risk of direct or indirect transmission through direct or indirect contact. Contact precautions are based on guidance from the CDC.

(8) Contagious disease--A type of infectious disease that is transmissible by direct or indirect contact with an infected person or infected bodily discharges or by contact with a contaminated surface.

(9) Day activity and health services (DAHS)--A facility licensed under Texas Human Resources Code, Chapter 103.

(10) Disease causing agent--A virus, bacteria, fungi, protozoa, helminth, or prion that causes an illness. Disease causing agents can lead to an outbreak, epidemic, or pandemic.

(11) Droplet precautions--A type of transmission-based precaution used for individuals, residents, or clients known or suspected to be infected with pathogens transmitted by respiratory droplets that are generated by an individual resident, or client when he or she is coughing, sneezing, or talking. Droplet precautions are based on guidance from the CDC.

(12) DSHS--Texas Department of State Health Services.

(13) End of life visit--A personal visit between a visitor and an individual, resident, or client who is receiving hospice services; who is at or near end of life, with or without receiving hospice services; or whose prognosis does not indicate recovery.

(14) Epidemic--The occurrence of more cases of a disease or other health condition than expected in an area or among a specific group of persons during a time period. The cases are presumed to have a common cause or to be related to one another in some way.

(15) Essential caregiver--A family member, friend, guardian, volunteer, or other person selected for in-person visits by an individual, an individual's legally authorized representative, a resident, or a resident's legally authorized representative, or a client or client's legally authorized representative.

(16) Essential caregiver visit--An in-person visit between an individual, resident, or client and a designated essential caregiver.

(17) Family education visit--A visit between a family education visitor and a client, who is in a hospice inpatient unit for an intensive stay, for the purpose of hospice staff educating the visitor on proper equipment use or care of the client after discharge from the unit. This definition applies only to an HCSSA.

(18) Family education visitor--A person, who may or may not be an essential caregiver, designated by a client, while the client is in the hospice inpatient unit for an intensive stay, to learn to provide regular care and support to the client and proper equipment use after discharge from the unit. This definition applies only to an HCSSA.

(19) HCSA Home and Community-based Services (HCS) program.

(20) Home and Community Support Services Agency (HCSSA)--An agency licensed under Texas Health and Safety Code, Chapter 142, to provide home health, hospice, or personal assistance services.

(21) Individual--A person enrolled in the Intermediate Care Facility for Individuals with an Intellectual Disability or Related Condition (ICF/IID) program, HCS program, or Texas Home Living (TxHmL) program. This definition applies to the ICF/IID, HCS, and TxHmL programs only.

(22) Infectious disease--An illness caused by germs such as bacteria, viruses, parasites, or fungi that enter the body, multiply, and can cause an infection. Some infectious diseases are contagious, and some are non-contagious.

(23) Inspection, testing, and maintenance (ITM) services for compliance--Services required to comply with requirements for inspecting, testing, and maintenance of fire protection systems and emergency systems.

(24) Intermediate Care Facility for Individuals with an Intellectual Disability or Related Condition (ICF/IID)--A facility licensed under Texas Health and Safety Code, Chapter 252, or exempt from licensure under Texas Health and Safety Code §252.003.

(25) Isolation--The separation of infected persons from all other individuals, residents, or clients to prevent transmission of contagious diseases to other susceptible persons. Isolation refers to the separation of ill persons.

(26) Legally authorized representative (LAR)--A person authorized by law to act on behalf of an individual, resident, or client with regard to a matter described by this chapter, and who may be the parent of a minor child or the legal guardian of or surrogate decision maker for the individual, resident, or client.

(27) Maintenance and repair--Patching, restoration, painting, or routine maintenance, without intentionally strengthening or upgrading, materials, elements, equipment, or fixtures for the purpose of maintaining such materials, elements, equipment, or fixtures in good or sound condition.

(28) Minor--A person younger than 21 years of age who is medically dependent or technologically dependent. This definition applies to the PPECC program only.

(29) Negative status--The status of a person who has tested negative for, is not exhibiting symptoms of, and has had no known exposure to the disease-causing agent.

(30) Nursing facility (NF)--A facility licensed under Texas Health and Safety Code, Chapter 242.

(31) Occupational Safety and Health Administration (OSHA)--The federal agency that ensures safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.

(32) Outbreak--The occurrence of more cases of a particular infection, disease, injury, or other health condition beyond what is usually expected in a given location, area, or time among facility staff or facility-acquired cases among individuals, residents, or clients. Outbreaks can occur in a community or multiple geographical areas. The duration of an outbreak can range from days to years. In some cases, a single case of an infectious disease is considered an outbreak.

(33) Pandemic--An epidemic occurring over a widespread area (multiple countries or continents) and usually affecting a substantial proportion of the population.

(34) Personal protective equipment (PPE)--PPE includes specialized clothing, surgical masks, N95 respirators, face shields, goggles, gloves, disposable gowns, and other equipment worn for protection against transmission of infectious diseases.

(35) Persons providing critical assistance--Providers of essential services, clergy, family members, or friends of individuals, residents, and clients at the end of life, and designated essential caregivers.

(36) Persons with legal authority to enter--Law enforcement officers, representatives of the long-term care ombudsman's office, representatives of the protection and advocacy system in the state for persons with mental illness or persons with intellectual or developmental disabilities, legal guardians, and government personnel performing their official duties.

(37) Positive case--An incident of a contagious disease, which meets CDC defined criteria for a confirmed diagnosis of the infectious disease, that is the basis of an outbreak, epidemic, or pandemic. Diagnostic tools may include but are not limited to laboratory tests, clinical findings, and imaging scans.

(38) Positive status--The status of a person who has tested positive for a disease-causing agent and does not yet meet CDC guidance for the discontinuation of transmission-based precautions.

(39) Prescribed pediatric extended care center (PPECC)--A center licensed under Texas Health and Safety Code, Chapter 248A.

(40) Program provider--A contractor, as defined in 40 TAC §49.102 (relating to Definitions), that has a contract with the Texas Health and Human Services Commission (HHSC) to provide HCS program services, excluding a Financial Management Services Agency.

(41) Providers of essential services--Physicians, nurses, mental health specialists, HCSSA staff, social workers, therapists, attendants, and volunteers in any of those roles; persons operating under the authority of a local intellectual and developmental disability authority, a local mental health authority, or a local behavioral health authority; a representative of HHSC whose services are necessary to ensure individual or resident health and safety; and persons performing maintenance and repair or ITM services for compliance.

(42) Quarantine--The separation of persons who have been exposed to, or are suspected to have been exposed to, a contagious disease, in order to monitor for illness and to reduce potential transmission of infection to susceptible persons during the incubation period. Quarantine refers to the separation of potentially exposed persons from those who have not had a known exposure.

(43) Religious counselor--A person acting substantially in a pastoral or religious capacity to provide spiritual counsel to other persons.

(44) Residence--

(A) A host home or companion care, three-person, or four-person residence, as defined by the HCS billing guidelines, unless otherwise specified. This definition only applies to the HCS program in Subchapter H of this chapter (relating to Home and Community-Based Services); or

(B) a private home, a nursing facility, an assisted living facility, an ICF/IID facility, or an unlicensed independent living environment. This definition only applies to the HCSSA program in Subchapter D of this chapter (relating to Home and Community Support Services Agencies).

(45) Resident--A person residing in a facility. This definition applies to NFs and ALFs only.

(46) Salon services visit--A personal visit between a resident or individual and a salon services visitor.

(47) Salon services visitor--A barber or cosmetologist providing hair care or personal grooming services to an individual or resident.

(48) Staff--Any employee, volunteer, or contractor of a facility, program provider, center, or HCSSA.

(49) Texas Home Living (TxHmL)--A program operated by HHSC and approved by CMS in accordance with §1915(c) of the Social Security Act that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

(50) Transmission-based precautions--The second tier of basic infection control to be used for persons who may be infected or colonized with certain infectious agents for which additional precautions are needed to prevent infection transmission. Types of transmission-based precautions include contact precautions, droplet precautions, and airborne precautions.

(51) Unknown status--The status of a person who has not been determined to have a positive or negative status with the disease-causing agent.

(52) Virtual visit--A personal visit using technology such as a phone, tablet, or computer.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104357

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER B. ASSISTED LIVING FACILITIES

26 TAC §§570.101, 570.103, 570.105, 570.107, 570.109, 570.111, 570.113

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.101.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, an assisted living facility (ALF) must regularly check federal, state, and local guidance.

(b) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, an ALF must:

(1) maintain infection control measures when:

(A) evacuation is necessary;

(B) sheltering in place is necessary; or

(C) receiving residents evacuating from another ALF that has positive cases of the disease or other health condition that is the basis of the outbreak, epidemic, or pandemic;

(2) have a transportation plan in place to evacuate residents as needed; and

(3) maintain a 90-day supply of personal protective equipment (PPE), including facemasks for droplet protection, N95 respirators, goggles, face shields, gloves, and gowns and ensure they are readily available in the event of an evacuation. Each facility determines what a 90-day supply means based on the CDC burn rate methodology.

(c) An ALF must have a protocol for receiving deliveries. This protocol must comply with any CDC guidance in place.

(d) Each ALF must have a communication plan to communicate the following information with residents, residents' representatives, resident's designated emergency contacts, and families:

(1) when a positive case is identified by the ALF;

(2) current visitation and activities policies and procedures;

(3) alternate methods of visitation that will be available during times of restricted visitation by executive order or other direction issued by the Governor of Texas, the President of the United States, or another applicable authority; and

(4) the primary point of contact at the ALF for questions and information and how residents, residents' representatives, and families can reach the primary point of contact.

(e) An ALF must post the information required in subsection (d)(2) - (4) of this section at its physical location.

(f) An ALF must develop infection prevention and control policies and procedures that:

(1) ensure resident rights in each area of the facility, including the right to:

(A) be informed of the resident's status;

(B) be informed of any symptoms or cases in the facility;

(C) personal visits, including virtual visits, based on the resident's personal status and the facility's status;

(D) refuse testing after receiving an explanation of the necessary precautions for residents who refuse; and

(E) leave the facility, based on their personal status and applicable guidance from the CDC, HHSC, or DSHS; and

(2) promote socialization and prevention of isolation, in accordance with CDC guidance, which must address:

(A) preventing unnecessary isolation or quarantine;

(B) ensuring that residents are not unnecessarily confined to their rooms;

(C) identifying and regularly facilitating activities that promote resident socialization in accordance with resident preferences; and

(D) identifying environmental factors that cause psychological stress.

§570.103.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, the assisted living facility (ALF) must have a testing strategy for all staff and residents if required by the CDC, HHSC, or DSHS.

(b) The ALF must develop a protocol based on HHSC, DSHS, and CDC guidance for residents and staff who refuse testing.

(c) An ALF must:

(1) monitor residents and staff for signs and symptoms of the contagious disease that caused the outbreak, epidemic, or pandemic;

(2) monitor residents and staff for any possible exposure to the contagious disease that caused the outbreak, epidemic, or pandemic; and

(3) activate outbreak infection control measures if:

(A) a positive case of the contagious disease that caused the outbreak, epidemic, or pandemic is identified in a resident or staff;

(B) a resident or staff is exhibiting symptoms of the contagious disease that caused the outbreak, epidemic, or pandemic; or

(C) there is a suspected or known exposure of a resident or staff to a positive case of the contagious disease that caused the outbreak, epidemic, or pandemic.

§570.105.Reporting.

(a) An assisted living facility (ALF) must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or the DSHS.

(b) An ALF must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) An ALF must inform facility staff, residents, resident representatives, resident's designated emergency contacts, or responsible parties of those residing in facilities by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among residents or staff. The ALF must not include personally identifiable information.

§570.107.Screening.

(a) An assisted living facility (ALF) must screen all persons attempting to enter the building prior to allowing them to enter the facility, except emergency services personnel entering the facility or facility campus in an emergency.

(b) The following screening criteria shall be used for visitors, staff, and residents:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) An ALF must document, in writing, all persons who enter the building in a log kept at the entrance of the facility and include the date, the person's name, current contact information, and data from the screening. The screening log might contain protected health information and must be protected in accordance with applicable state and federal law.

(d) An ALF must screen all staff at the beginning of each shift for the criteria in subsection (b) of this section prior to allowing them to enter the facility.

(e) Staff who do not pass screening must leave the ALF and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(f) An ALF must screen residents in accordance with any HHSC or DSHS guidance.

(g) Residents who do not pass screening must be quarantined or isolated, as appropriate, and monitored in accordance with HHSC, DSHS, and CDC guidance.

(h) An ALF must allow persons providing critical assistance, including essential caregivers, to enter the facility if they pass the screening criteria in subsection (b) of this section. A facility may not prohibit entry of persons with legal authority to enter when performing their official duties.

(i) An ALF must post signage at all entrances of the facility prohibiting persons, other than emergency services personnel providing emergency services, from entering the facility prior to being screened.

§570.109.Staff Requirements.

(a) Each assisted living facility (ALF) must ensure staffing levels are adequate to meet the needs of all residents, including those in isolation and quarantine.

(b) Each ALF must have a staffing plan in place that:

(1) ensures staff in each area of the facility are trained to provide care to residents in their assigned area;

(2) ensures supervision of staff in each area of the ALF; and

(3) includes a staffing contingency plan to ensure adequate staffing in the event multiple staff are out due to illness.

(c) Each ALF must have at least one staff member responsible for infection control protocol.

(d) Each ALF must document that training was provided to each staff member and that the training topics included:

(1) providing care to residents in isolation;

(2) providing care to residents in quarantine;

(3) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the facility;

(B) providing care to residents who are negative status, positive status, and unknown status; and

(C) providing care to residents exhibiting symptoms and awaiting test results;

(4) proper donning, doffing, and use of PPE;

(5) proper cleaning and disinfecting procedures;

(6) the ALF's infection control plan;

(7) the ALF's emergency preparedness plan;

(8) standard assessment protocols; and

(9) enhanced assessment protocols to be implemented when quarantine and isolation are necessary.

§570.111.Visitation.

(a) An assisted living facility's visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, HHSC, or DSHS. Assisted living facility (ALF) visitation policies and procedures may not be more restrictive than directives issued by HHSC, DSHS, executive orders, or local orders.

(b) An ALF must permit clergy to visit a resident at the request of the resident.

(c) An ALF may not prohibit a resident from receiving in-person visitation with a religious counselor during a public health emergency on request from the resident, resident's legally authorized representative (LAR), or resident's family member. An ALF may prohibit in-person visitation with a religious counselor if a federal law or a federal agency requires the facility to prohibit in-person visitation during a public health emergency.

(d) An ALF must adopt policies and procedures for in-person visitation with a religious counselor during a contagious disease outbreak, epidemic, or pandemic. These policies and procedures:

(1) must comply with the minimum health and safety requirements for in-person visitation with religious counselors developed by HHSC;

(2) may include reasonable time, place, and manner restrictions on in-person visitation with religious counselors to:

(A) mitigate the spread of a communicable disease; and

(B) address the resident's medical condition;

(3) must include special consideration for residents receiving end of life care; and

(4) may require religious counselors to comply with an ALF's guidelines, policies, and procedures for in-person visitation with a religious counselor.

(e) An ALF may allow salon services visits. An ALF must establish policies and procedures in response to a contagious disease outbreak, epidemic, or pandemic, based on guidance issued by the CDC, HHSC, or DSHS that provide conditions for a salon visit to occur.

(f) An ALF must permit end of life visits and immediately communicate any changes in a resident's condition that would qualify the resident for end of life visits to the resident representative.

§570.113.Essential Caregiver Visits.

(a) A resident or the resident's legally authorized representative (LAR), if the resident is unable, has the right to designate an essential caregiver.

(b) An assisted living facility (ALF) must permit essential caregiver visits.

(c) An ALF must allow essential caregiver visits to occur outdoors, in the resident's bedroom, or in another area, when possible, upon request by a resident or resident's LAR.

(d) An ALF must develop a visitation policy that permits an essential caregiver to visit the resident for at least two hours each day.

(e) An ALF must have procedures in place to enable physical contact between the resident and the essential caregiver.

(f) The ALF must develop safety protocols for essential caregiver visits. The safety protocols may not be more stringent for essential caregivers than safety protocols for staff.

(g) An ALF must obtain the signature of the essential caregiver certifying that the essential caregiver will follow the facility's safety protocols for essential caregiver visits.

(h) An ALF may revoke an essential caregiver designation if the caregiver violates the facility's safety protocols or rules adopted under this chapter.

(i) If an ALF revokes a person's designation as an essential caregiver under subsection (h) of this section:

(1) the resident or the resident's LAR has the right to immediately designate another person as the essential caregiver;

(2) within 24 hours after the revocation, the facility must inform the resident or the resident's legally authorized representative, in writing, of the right to appeal the revocation and the procedures for filing an appeal with the Texas Health and Human Services Commission (HHSC) Appeals Division by:

(A) email at OCC_Appeals_ContestedCases@hhs.texas.gov; or

(B) mail at HHSC Appeals Division, P.O. Box 149030, MC W-613, Austin, TX 78714-9030; and

(3) the ALF must comply with a hearing officer's decision regarding an appeal of an essential caregiver revocation.

(j) An ALF may petition HHSC to suspend in-person essential caregiver visits for no more than seven consecutive calendar days if in-person visitation poses a serious community health risk. An ALF may request an extension from HHSC to suspend in-person essential caregiver visitation beyond the ALF's original request, but HHSC may not approve an extension for a period that exceeds seven days and an ALF must separately request each extension. HHSC may deny the ALF's original request to suspend in-person essential caregiver visitation or the ALF's extension request if HHSC determines that in-person visitation does not pose a serious community health risk.

(k) An ALF may not suspend in-person essential caregiver visits in a calendar year for a time period that:

(1) is more than 14 consecutive days; or

(2) is more than a total of 45 days.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104358

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER C. DAY ACTIVITY AND HEALTH SERVICES

26 TAC §§570.201, 570.203, 570.205, 570.207, 570.209, 570.211

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sectionsimplement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.201.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a day activity and health services (DAHS) facility must regularly check federal, state, and local guidance related to the contagious disease outbreak, epidemic, or pandemic.

(b) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a DAHS facility must:

(1) maintain infection control measures; and

(2) maintain an adequate supply of personal protective equipment (PPE), including facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns.

(c) A DAHS facility must have a protocol for receiving deliveries. This protocol must comply with any CDC guidance put into place.

(d) Each DAHS facility must have a communication plan to communicate the following information with clients, clients' representatives, and families:

(1) when a positive case is identified by the DAHS facility;

(2) current visitation and activities policies and procedures; and

(3) the primary point of contact at the DAHS facility for questions and information and how clients, clients' representatives, and families can reach the primary point of contact.

§570.203.Monitoring.

A day activity and health services facility must:

(1) monitor clients and staff for signs and symptoms;

(2) monitor clients and staff for any possible exposure; and

(3) activate outbreak infection control measures if:

(A) a positive case is identified in a client or staff;

(B) a client or staff is exhibiting related symptoms; and

(C) there is a suspected or known exposure of a client or staff to a positive case.

§570.205.Reporting.

(a) A day activity and health services (DAHS) facility must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or DSHS.

(b) A DAHS must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A DAHS must inform facility staff, clients, client representatives, client's designated emergency contacts, or responsible parties of those in facilities by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among clients or staff. The DAHS must not include personally identifiable information.

§570.207.Screening.

(a) A day activity and health services (DAHS) facility must screen all visitors prior to allowing them to enter the facility, except emergency services personnel entering the facility or facility campus in an emergency. Visitors who do not pass the screening must leave the DAHS facility.

(b) The following screening criteria shall be used for visitors, staff, and clients:

(1) signs or symptoms specific to the contagious disease that caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the visitor is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) A DAHS facility must document, in writing, all persons who enter the building in a log kept at the entrance of the facility and include the date, the person's name, current contact information, and data from the screening. The screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(d) A DAHS facility must screen all staff at the beginning of each shift prior to allowing them to enter the facility in accordance with subsection (b) of this section.

(e) Staff who do not pass screening must leave the DAHS facility and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(f) A DAHS facility must screen clients in accordance with any HHSC or DSHS guidance.

(g) Clients who do not pass screening must be kept in an isolated area until they leave the building.

(h) A DAHS facility must allow persons providing critical assistance to enter the facility if they pass the screening criteria in subsection (b) of this section. A DAHS facility may not prohibit entry of persons with legal authority to enter when performing their official duties.

(i) A DAHS facility must post signage at all entrances of the facility prohibiting persons from entering the facility prior to being screened.

§570.209.Staff Requirements.

(a) Each day activity and health services (DAHS) facility must have a staffing plan in place that includes a staffing contingency plan to ensure adequate staffing in the event multiple staff are out due to illness.

(b) Each DAHS facility must have at least one staff member responsible for infection control protocol.

(c) Each DAHS facility must document that training was provided to each staff member and that the training topics included:

(1) providing care to clients if they are required to isolate in an area of the DAHS facility while the client waits for transportation away from the facility;

(2) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the DAHS facility;

(B) providing care to clients who are negative status, positive status, and unknown status; and

(C) providing care to those exhibiting symptoms and awaiting test results;

(3) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the facility;

(B) providing care to clients who are negative status, positive status, and unknown status; and

(C) providing care to clients exhibiting symptoms and await test results;

(4) proper cleaning and disinfecting procedures;

(5) the facility's infection control plans;

(6) the facility's emergency preparedness plans;

(7) standard assessment protocols; and

(8) enhanced assessment protocols to be implemented when a client who meets the screening criteria awaits transportation away from the DAHS facility.

§570.211.Visitation.

(a) A day activity and health services (DAHS) facility's visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, HHSC, or DSHS. DAHS visitation policies and procedures may not be more restrictive than directives issued by the CDC, HHSC, DSHS, executive orders, or local orders.

(b) A DAHS facility must permit clergy to visit a resident at the request of the resident.

(c) A DAHS facility may prohibit in-person visitation with a religious counselor during a public health emergency if a federal law or federal agency requires the facility to prohibit in-person visitation during that period.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104359

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER D. HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

DIVISION 1. ALL HCSSAS EXCEPT HOSPICE INPATIENT UNITS

26 TAC §§570.301 - 570.303, 570.305, 570.307, 570.309, 570.311, 570.313, 570.315

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.301Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a home and community support services agency (HCSSA) must regularly check federal, state, and local guidance.

(b) During a contagious disease outbreak, epidemic, or pandemic an HCSSA must maintain a 90-day supply of personal protective equipment (PPE), including surgical facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns. The 90-day supply is based on the CDC burn rate methodology.

(c) An HCSSA must provide appropriate PPE to its staff to use while providing services to HCSSA clients.

(d) An HCSSA must ensure clients have appropriate PPE to use during the provision of services. A client's care plan, plan of care, or individualized service plan must address the specific type of PPE to be provided to the client, based on infection control needs related to the services being provided.

(e) An HCSSA must ensure staff conducting client services or entering a residence in a supervisory capacity are trained and knowledgeable on guidelines or recommendations issued by the CDC, Food and Drug Administration, Occupational Safety and Health Administration, DSHS, and HHSC regarding:

(1) the types of PPE that are appropriate for the services being provided;

(2) the proper use of PPE, including donning and doffing; and

(3) proper cleaning and disinfecting procedures in areas where services are being delivered.

(f) An HCSSA with a service area that has multiple counties must ensure transmission-based precautions and surveillance are county-specific and based on conditions in the county where services are delivered.

(g) HCSSA staff have legal authority to enter a facility to provide services to the facility's residents who are agency clients. HCSSA staff entering a facility must follow the infection control protocols of the facility, including testing requirements. HCSSA staff who are denied entry to a facility may report the denial to HHSC.

(h) Following a report made in accordance with §570.305(a) of this division (relating to Reporting), an HCSSA must document actions taken to ensure infection control among the HCSSA's clients and staff.

§570.302.Documentation of Physician's or Practitioner's Signatures.

During a contagious disease outbreak, epidemic, or pandemic, a home and community support services agency (HCSSA) may be exempt from obtaining physician's or practitioner's signatures of verbal orders and plans of care. The HCSSA must have documented evidence of coordination of care with the physician or practitioner.

§570.303.Testing.

During a contagious disease outbreak, epidemic, or pandemic, a home and community support services agency must develop a testing strategy for staff and clients if required by the CDC, HHSC, or DSHS.

§570.305.Reporting.

(a) A home and community support services agency (HCSSA) must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or DSHS.

(b) A HCSSA must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A HCSSA must inform staff, clients, client representatives, client's designated emergency contacts, or responsible parties of those receiving services from the HCSSA by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among clients or staff. The HCSSA must not include personally identifiable information.

§570.307.Screening.

(a) A home and community support services agency (HCSSA) must document each required screening.

(b) An HCSSA must screen staff at the beginning of each workday or shift and prior to the staff conducting a home visit or reporting to the agency's place of business for the following screening criteria:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) Staff who do not pass screening are prohibited from:

(1) conducting home visits; and

(2) reporting to the HCSSA's place of business where the staff will interact with any other staff or the public.

(d) If an HCSSA determines that a scheduled home visit is an essential visit in accordance with §570.311 of this division (relating to Determining Essential Visit), the HCSSA must screen the client and household members present in the home at the time of the visit or before conducting the home visit.

(e) If the client or a member of the household does not pass the screening, staff must use appropriate personal protective equipment during the visit. If the client and all members of the household pass the screening, staff must conduct the visit as indicated for the type of service provided.

§570.309.Staff Requirements.

(a) Each home and community support services agency (HCSSA) must ensure staffing and backup services are adequate to meet the needs of all clients regardless of the clients' infectious or communicable disease status, including those clients in isolation and quarantine.

(b) Each HCSSA must have a staffing plan in place that:

(1) ensures staff are trained to provide care to a client based on the client's and household members' status of infectious or communicable disease;

(2) ensures supervision of staff relating to infection control protocols;

(3) includes a staffing contingency plan to mitigate staffing shortages in the event multiple staff are unable to work due to illness or quarantine requirements in relation to the contagious disease outbreak, epidemic, or pandemic;

(4) ensures, to the extent practicable, that staff are assigned to the same client cohorts and licensed facilities to effect transmission-based precautions for staff and clients; and

(5) documents staffing shortage mitigation activities.

(c) An HCSSA licensed to provide personal assistance services must designate a staff member to be responsible for coordinating infection control protocol who reports to the HCSSA administrator and participates on the Quality Assessment and Performance Improvement (QAPI) committee.

(d) Except as provided for in subsection (e) of this section, an HCSSA licensed to provide home health or hospice services must have a registered nurse responsible for coordinating infection control protocol who reports to the HCSSA administrator and participates on the QAPI committee.

(e) An HCSSA licensed to provide only physical, occupational, speech, or respiratory therapy, medical social services, or nutritional counseling must designate a staff member to be responsible for coordinating infection control protocol who reports to the HCSSA administrator and participates on the QAPI committee.

§570.311.Determining Essential Visit.

(a) An essential visit is one that includes a service that must be delivered to ensure the client's health and safety, such as nursing services, therapies, medication administration, assisting with self-administered medications and other personal care tasks, wound care, transfer, or ambulation. Whether a visit qualifies as an essential visit is determined on a case-by-case basis and according to the client's need for the service on the day of the scheduled visit in accordance with the plan of care, care plan, or individualized service plan.

(b) A home and community support services agency (HCSSA) must determine if a scheduled home visit is an essential visit.

(1) If the scheduled home visit is not an essential visit, the visit must be:

(A) conducted by phone or video conference, if possible; or

(B) rescheduled for a later date.

(2) If the scheduled visit is an essential visit, staff must conduct the visit in person and screen the client and household members in accordance with §570.307 of this division (relating to Screening).

(3) An HCSSA must document any missed visits and notify the attending physician or practitioner, if applicable.

§570.313.Supervisory Visits by Telecommunication.

(a) A parent home and community support services agency (HCSSA) administrator or alternate administrator, or supervising nurse or alternate supervising nurse, may make the monthly supervisory visit required for branch supervision, or as required for the alternative delivery site, by virtual communication, such as video or telephone conferencing systems. An HCSSA must document each supervisory visit conducted by virtual communication and the outcome of the visit.

(b) An HCSSA may conduct required supervisory visits of staff by virtual communication, such as video or telephone conferencing systems. An HCSSA must document each supervisory visit conducted by virtual communication and the outcome of the visit.

§570.315.Client Symptoms.

(a) If a home health or hospice client reports symptoms of a communicable or infectious disease that is associated with a contagious disease outbreak, epidemic, or pandemic, the home and community support services agency (HCSSA) must coordinate care with the client's attending physician or practitioner and amend the client's plan of care or care plan as indicated.

(b) If a personal assistance services client reports symptoms of a communicable or infectious disease that is associated with a contagious disease outbreak, epidemic, or pandemic, the HCSSA must coordinate care by discussing with the client the importance of informing the client's physician or practitioner of the symptoms. The HCSSA may inform the client's physician or practitioner with the client's consent.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104360

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


DIVISION 2. HOSPICE AGENCIES OPERATING AN INPATIENT FACILITY

26 TAC §§570.317 - 570.319, 570.321, 570.323, 570.325, 570.327, 570.329

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.317.Emergency Response to Outbreak, Epidemic, or Pandemic for Hospice Inpatient Unit.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a hospice agency operating a hospice inpatient unit must regularly check federal, state, and local guidance.

(b) During a contagious disease outbreak, epidemic, or pandemic, a hospice agency operating an inpatient unit must maintain a 90-day supply of personal protective equipment (PPE), including surgical facemasks for aerosolized droplet protection, N95 respirators, goggles, face shields, gloves, and gowns as determined to be effective for transmission-based precautions by the CDC for the clients and residents. The 90-day supply is based on CDC burn rate methodology.

(c) A hospice agency operating an inpatient unit must provide appropriate PPE to its staff to use while providing services to agency clients.

(d) A hospice agency operating an inpatient unit must ensure clients have appropriate PPE to use during the provision of services. A client's care plan or plan of care must address the specific type of PPE to be provided to the client, which is based upon infection control needs related to the services being provided.

(e) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a hospice inpatient unit must:

(1) maintain infection control measures when:

(A) evacuation is necessary;

(B) sheltering in place is necessary; or

(C) receiving residents evacuating from another hospice inpatient unit that has positive cases; and

(2) have transportation agreements that include an assurance that the agreement will be honored if the evacuating facility has positive cases.

(f) A hospice agency operating a hospice inpatient unit must have a communication plan to communicate the following information with clients, clients' legally authorized representatives, and family members:

(1) when a positive case is identified;

(2) current visitation and activities policies and procedures;

(3) alternate methods of visitation that will be available during times of restricted visitation; and

(4) the primary point of contact at the inpatient hospice for questions and information and how clients, clients' legally authorized representatives, and families can reach the primary point of contact.

(g) A hospice agency operating a hospice inpatient unit must:

(1) develop and enforce family education visit policies and procedures that address the contagious disease outbreak, epidemic, or pandemic that is occurring; and

(2) develop a written agreement between the hospice and the family education visitors that states that the family education visitors understand and agree to follow the applicable policies, procedures, and requirements.

(h) A hospice agency must:

(1) provide appropriate PPE to the family education visitor for use during the entirety of each family education visit, including provision of replacement PPE if the equipment becomes unusable or ineffective; and

(2) provide training for each family education visitor on proper PPE usage and infection control measures.

(i) A hospice agency operating a hospice inpatient unit must have a protocol for receiving deliveries. This protocol must comply with any CDC guidance put into place.

§570.318.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, a hospice agency operating a hospice inpatient unit must develop a testing strategy for staff and clients, as applicable per guidance from CDC, HHSC, or DSHS. The hospice agency must ensure staff are tested or conduct testing if a test is available for the communicable or infectious disease.

(b) A hospice agency operating a hospice inpatient unit must develop a protocol for clients and staff who refuse testing.

(c) A hospice agency operating a hospice inpatient unit must:

(1) monitor clients and staff for signs and symptoms related to the contagious disease outbreak, epidemic, or pandemic;

(2) monitor clients and staff for any possible exposures; and

(3) activate outbreak infection control measures if:

(A) a positive case is identified in a client or staff;

(B) a client or staff is exhibiting symptoms related to the pandemic, outbreak, or epidemic; and

(C) there is a suspected or known exposure of a client or staff to a positive case.

§570.319.Reporting.

(a) A hospice agency operating a hospice inpatient unit must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or DSHS.

(b) A hospice agency operating a hospice inpatient unit must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A hospice agency operating a hospice inpatient unit must inform staff, clients, client representatives, client's designated emergency contacts, or responsible parties of those residing in a hospice inpatient unit by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among clients or staff. The hospice agency operating a hospice inpatient unit must not include personally identifiable information.

§570.321.Screening.

(a) A hospice agency operating a hospice inpatient unit must screen all visitors prior to allowing them to enter the hospice inpatient unit, except emergency services personnel entering the hospice inpatient unit in an emergency.

(b) Visitors or staff who meet any of the following screening criteria must leave the facility:

(1) signs or symptoms specific to the communicable or infectious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicative that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) A hospice agency operating a hospice inpatient unit must document, in writing, all persons who enter the unit in a log kept at the entrance of the unit and include the date, the person's name, current contact information, and data from the screening results. The screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(d) A hospice agency operating a hospice inpatient unit must screen all staff at the beginning of each shift prior to allowing them to enter the unit.

(e) A hospice agency operating a hospice inpatient unit must screen clients in accordance with applicable HHSC or DSHS guidance.

(f) Clients who do not pass screening must be quarantined and monitored.

(g) A hospice agency operating a hospice inpatient unit must allow persons providing critical assistance, including essential caregivers, to enter the unit if they pass the screening criteria in subsection (b) of this section. A hospice inpatient unit may not prohibit entry of persons with legal authority to enter when doing so to perform their official duties.

(h) A hospice agency operating a hospice inpatient unit must post signage at all entrances of the unit prohibiting persons from entering the unit prior to being screened.

§570.323.Staff Requirements.

(a) Each hospice agency operating a hospice inpatient unit must ensure staffing levels are adequate to meet the needs of all clients, including those in isolation and quarantine.

(b) Each hospice agency operating a hospice inpatient unit must have a staffing plan in place that:

(1) ensures staff in each area of the unit are trained to provide care to clients in their assigned cohort area;

(2) ensures supervision of staff in each area of the unit;

(3) includes a staffing contingency plan to ensure adequate staffing in the event multiple staff are unable to work due to illness;

(4) requires staff be assigned to client cohorts as necessary to ensure transmission-based precautions for clients in isolation and quarantine; and

(5) documents staffing shortage mitigation activities.

(c) Each hospice agency operating a hospice inpatient unit must ensure that the hospice inpatient unit infection control protocols are developed and reviewed by the infection control coordinator.

(d) Each hospice agency operating a hospice inpatient unit must document that training was provided to each staff member and that the training topics included:

(1) providing care to clients in isolation;

(2) providing care to clients in quarantine;

(3) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the unit;

(B) providing care to clients who are negative status, positive status, and unknown status; and

(C) providing care to clients exhibiting symptoms and awaiting test results;

(4) proper donning, doffing, and use of PPE;

(5) proper cleaning and disinfecting procedures;

(6) the unit's infection control plans;

(7) the unit's emergency preparedness plans;

(8) standard assessment protocols; and

(9) enhanced assessment protocols to be implemented when quarantine or isolation are necessary.

§570.325.Visitation.

(a) A hospice agency operating a hospice inpatient unit's visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, HHSC, or DSHS. A hospice agency operating a hospice inpatient unit's policies and procedures may not be more restrictive than directives issued by the CDC, HHSC, DSHS, executive orders, or local orders.

(b) A hospice agency operating a hospice inpatient unit must permit clergy to visit a resident at the request of the resident.

(c) A hospice agency operating a hospice inpatient unit may not prohibit a client from receiving in-person visitation with a religious counselor during a public health emergency on request from the client, client's legally authorized representative (LAR), or client's family member. A hospice agency operating a hospice inpatient unit may prohibit in-person visitation with a religious counselor if a federal law or a federal agency requires the facility to prohibit in-person visitation during a public health emergency.

(d) A hospice agency operating a hospice inpatient unit must adopt policies and procedures for in-person visitation with a religious counselor during a contagious disease outbreak, epidemic, or pandemic. These policies and procedures:

(1) must comply with the minimum health and safety requirements for in-person visitation with religious counselors developed by HHSC;

(2) may include reasonable time, place, and manner restrictions on in-person visitation with religious counselors to:

(A) mitigate the spread of a communicable disease; and

(B) address the resident's medical condition;

(3) must include special consideration for residents receiving end of life care; and

(4) may require religious counselors to comply with a hospice agency operating a hospice inpatient unit's guidelines, policies, and procedures for in-person visitation with a religious counselor.

(e) A hospice agency operating a hospice inpatient unit may allow salon services visits. A facility must establish policies and procedures in response to a contagious disease outbreak, epidemic, or pandemic, based on guidance issued by the CDC, HHSC, or DSHS that provide conditions for a salon visit to occur.

(f) A hospice agency operating a hospice inpatient unit must permit end of life visits and immediately communicate any changes in a resident's condition that would qualify the resident for end of life visits to the resident's representative or resident's legally authorized representative.

§570.327.Essential Caregiver Visits.

(a) A resident or the resident's legally authorized representative (LAR), if the resident is unable, has the right to designate an essential caregiver.

(b) A hospice agency operating a hospice inpatient unit must permit essential caregiver visits.

(c) A hospice agency operating a hospice inpatient unit must develop a visitation policy that permits an essential caregiver to visit the resident for at least two hours each day.

(d) A hospice agency operating a hospice inpatient unit must have procedures in place to enable physical contact between the resident and the essential caregiver.

(e) A hospice agency operating a hospice inpatient unit must develop safety protocols for essential caregiver visits. The safety protocols may not be more stringent for essential caregivers than safety protocols for staff.

(f) A hospice agency operating a hospice inpatient unit must obtain the signature of the essential caregiver certifying that the essential caregiver will follow the facility's safety protocols for essential caregiver visits.

(g) A hospice agency operating a hospice inpatient unit may revoke an essential caregiver designation if the caregiver violates the facility's safety protocols or rules adopted under this chapter.

(h) If a hospice agency operating a hospice inpatient unit revokes a person's designation as an essential caregiver under subsection (g) of this section:

(1) the resident or the resident's LAR has the right to immediately designate another person as the essential caregiver;

(2) within 24 hours after the revocation, the hospice agency operating a hospice inpatient unit must inform the resident or the resident's LAR, in writing, of the right to appeal the revocation and the with the Texas Health and Human Services Commission (HHSC) Appeals Division by:

(A) email at OCC_Appeals_ContestedCases@hhs.texas.gov; or

(B) mail at HHSC Appeals Division, P.O. Box 149030, MC W-613, Austin, TX 78714-9030; and

(3) the hospice agency operating a hospice inpatient unit must comply with a hearing officer's decision regarding an appeal of an essential caregiver revocation.

(i) A hospice agency operating a hospice inpatient unit may petition HHSC to suspend in-person essential caregiver visits for no more than seven consecutive calendar days if in-person visitation poses a serious community health risk. A hospice agency operating a hospice inpatient unit may request an extension from HHSC to suspend in-person essential caregiver visitation beyond the hospice agency operating a hospice inpatient unit's original request, but HHSC may not approve an extension for a period that exceeds seven days and a hospice agency operating a hospice inpatient unit must separately request each extension. HHSC may deny the hospice agency operating a hospice inpatient unit's original request to suspend in-person essential caregiver visitation or the hospice agency operating a hospice inpatient unit's extension request if HHSC determines that in-person visitation does not pose a serious community health risk.

(j) A hospice agency operating a hospice inpatient unit may not suspend in-person essential caregiver visits in a calendar year for a time period that:

(1) is more than 14 consecutive days; or

(2) is more than a total of 45 days.

§570.329.Temporary Partial or Full Closure to Allow for Space to be Used to Treat Non-Hospice Clients in an Emergency.

(a) A hospice agency operating an inpatient unit may temporarily fully or partially close to allow space to be used by a hospital for overflow services provided to infectious patients who are not hospice clients.

(b) The hospice agency must notify the HHSC Regional Office of its plans for partial or full closure and plans to reclaim the space.

(c) The hospice agency must not provide services to non-hospice clients in the shared space.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104361

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER E. PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS

26 TAC §§570.401, 570.403, 570.405, 570.407, 570.409, 570.411

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.401.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a prescribed pediatric extended care center (PPECC) must regularly check federal, state, and local guidance.

(b) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a PPECC must:

(1) maintain infection control measures; and

(2) maintain an adequate supply of personal protective equipment (PPE), including facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns.

(c) A PPECC must have protocol for receiving deliveries. This protocol must comply with any CDC guidance put into place.

(d) Each PPECC must have a communication plan to communicate the following information with minors, minors' representatives, and families:

(1) when a positive case is identified by the PPECC;

(2) current visitation and activities policies and procedures; and

(3) the primary point of contact at the PPECC for questions and information and how minors, minor representatives, and families can reach the primary point of contact.

§570.403.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, a prescribed pediatric extended care center (PPECC) must conduct routine testing of all staff and minors per guidance from the HHSC or DSHS.

(b) The PPECC must develop protocol for minors and staff who refuse testing.

(c) The PPECC must:

(1) monitor minors and staff for signs and symptoms;

(2) monitor minors and staff for any possible exposure; and

(3) activate outbreak infection control measures if:

(A) a positive case is identified in a minor or staff;

(B) a minor or staff is exhibiting related symptoms; or

(C) there is a suspected or known exposure of a minor or staff to a positive case.

§570.405.Reporting.

(a) A prescribed pediatric extended care center (PPECC) must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or the DSHS.

(b) An PPECC must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A PPECC must inform center staff, minors, minor's representatives, minor's designated emergency contacts, or responsible parties of those attending a PPECC by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among clients or staff. The PPECC must not include personally identifiable information.

§570.407.Screening.

(a) A prescribed pediatric extended care center (PPECC) must screen all visitors prior to allowing them to enter the PPECC, except emergency services personnel entering the center in an emergency. Visitors who do not pass screening must not enter the PPECC.

(b) The following screening criteria shall be used for visitors, staff, and minors:

(1) signs or symptoms specific to the contagious disease that caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) A PPECC must document, in writing, all persons who enter the building in a log kept at the entrance of the center and include the date, the person's name, current contact information, and data from the screening. The screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(d) A PPECC must screen all staff at the beginning of each shift prior to their entering the center in accordance with subsection (b) of this section.

(e) Staff who do not pass screening must leave the PPECC and not return until they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(f) A PPECC must screen minors in accordance with applicable HHSC or DSHS guidance.

(g) Minors who do not pass screening must be isolated until they can leave the PPECC.

(h) A PPECC must allow persons providing critical assistance to enter the PPECC if they pass the screening criteria in subsection (b) of this section. A PPECC may not prohibit entry of persons with legal authority to enter when performing their official duties.

(i) A PPECC must post signage at all entrances of the PPECC prohibiting persons from entering the PPECC prior to being screened.

§570.409.Staff Requirements.

(a) Each prescribed pediatric extended care center (PPECC) must have a staffing plan in place that includes a staffing contingency plan to ensure adequate staffing in the event multiple staff are out due to illness.

(b) Each PPECC must have at least one staff member responsible for infection control protocol.

(c) Each PPECC must document that training was provided to each staff member and that the training topics included:

(1) isolation protocols for minors who begin to show signs and symptoms while at the PPECC;

(2) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the center;

(B) providing care to minors who are negative status, positive status, and unknown status; and

(C) providing care to minors exhibiting symptoms and awaiting test results;

(3) proper donning, doffing, and use of PPE;

(4) proper cleaning and disinfecting procedures;

(5) the PPECC's infection control plans;

(6) the PPECC's emergency preparedness plans;

(7) standard assessment protocols; and

(8) enhanced assessment protocols to be implemented when isolation of a minor is necessary.

§570.411.Visitation.

(a) A Prescribed Pediatric Extended Care Center (PPECC) visitation policies and procedures may change in response during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, HHSC, DSHS, executive orders, or local orders. A PPECC's visitation policies and procedures may not be more restrictive than directives issued by the CDC, HHSC, DSHS, or local orders.

(b) A PPECC must permit clergy to visit a minor at the request of the minor, minor's parent, or minor's guardian.

(c) A PPECC may prohibit in-person visitation with a religious counselor during a public health emergency if a federal law or federal HCSSA requires the facility to prohibit in-person visitation during that period.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104362

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER F. NURSING FACILITIES

26 TAC §§570.501, 570.503, 570.505, 570.507, 570.509, 570.511, 570.513 - 570.515, 570.517

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.501.Planning for Outbreak, Epidemic, or Pandemic.

(a) A nursing facility (NF) must ensure the infection prevention and control program required by §554.1601(b) of this title (relating to Infection Control) includes information specific to emerging contagious diseases, epidemics, and pandemics, including:

(1) preparation, which must address:

(A) obtaining and maintaining a 90-day supply of personal protective equipment (PPE), including surgical face masks for droplet protection, N95 respirators, goggles or face shields, gloves, and gowns;

(B) training staff on infection control plans no later than 24 hours after identification of a contagious disease outbreak, epidemic, or pandemic;

(C) providing more staff in times of outbreak; and

(D) dedicating staff for various resident populations: residents with positive status, residents with negative status, and residents with unknown status;

(2) staff training, which must address:

(A) which PPE is appropriate for use in each area of a NF and by staff when providing care to residents with positive status, residents with negative status, and residents with unknown status;

(B) donning, doffing, and use of PPE;

(C) cleaning and disinfecting policies and procedures based on the risk of transmission of the disease-causing agent and in accordance with CDC guidance on environmental cleaning and disinfection for the disease-causing agent; and

(D) contingency plans for staffing shortages due to staff illness;

(3) rapid detection, which must address:

(A) screening and monitoring;

(B) testing; and

(C) contact tracing;

(4) mitigation, which must address:

(A) isolation plans for residents with new cases of the contagious disease, including designated cohorting areas;

(B) quarantine plans for residents with unknown status, including designated cohorting areas, according to CDC guidance;

(C) designated staff assigned to work with each cohort whose designation does not change from one day to another, unless required to maintain adequate staffing for a cohort;

(D) increased staffing for quarantine and isolation groups; and

(E) plans related to staff working at multiple facilities;

(5) PPE, which must address:

(A) maintaining a 90-day supply of all CDC-recommended PPE including the PPE required by paragraph (1)(A) of this subsection and any other PPE recommended by the CDC for a specific disease or disease-causing agent;

(B) the NF's burn rate methodology used to calculate how much PPE is needed for 90 days; and

(C) who to contact if supplies are needed or difficult to obtain, including contact information; and

(6) cleaning and disinfecting, which must address:

(A) janitorial staff;

(B) cleaning and disinfecting procedures for:

(i) each area in the NF;

(ii) each type of surface;

(iii) equipment that must be used for more than one resident;

(iv) laundry; and

(C) deep cleaning, to include increased frequency for all housekeeping activities.

(b) A NF must develop infection prevention and control policies and procedures, which include:

(1) testing in accordance with applicable HHSC, DSHS, and CDC guidance, which must address:

(A) routine testing of all staff;

(B) testing of residents and staff during a contagious disease outbreak in the NF;

(C) testing of residents and staff with signs and symptoms of infection; and

(D) protocols for residents and staff who refuse testing.

(2) Ensuring a resident's rights in each area of a NF, including:

(A) the right to be informed of his or her contagious disease status;

(B) the right to be informed of any symptoms or cases of the contagious disease in the facility;

(C) the right to personal visits, including virtual visits, based on the resident's contagious disease status and guidance from CDC, Centers for Medicare and Medicaid Services (CMS), HHSC, or DSHS;

(D) the right for married residents to choose not to physically distance from their spouse, if both spouses consent;

(E) the right to refuse testing after receiving an explanation of the necessary precautions for residents who refuse; and

(F) the right of residents to leave the facility.

(3) Promotion of socialization and prevention of isolation, in accordance with CDC guidance, which must address:

(A) preventing unnecessary isolation or quarantine;

(B) ensuring that residents are not unnecessarily confined to their rooms;

(C) identifying and regularly facilitating activities that promote resident socialization in accordance with resident preferences; and

(D) preventing misuse of antipsychotic medications for residents experiencing negative psychological effects from infection prevention and control measures, including training for staff to identify environmental factors that cause psychological stress.

(c) A NF must ensure that emergency preparedness plans required by §554.1914 of this title (relating to Emergency Preparedness and Response) address emerging contagious diseases, epidemics, and pandemics, including:

(1) maintaining infection control measures if evacuation is necessary;

(2) maintaining infection control measures if sheltering in place is necessary;

(3) maintaining infection control measures when the NF is contracted or agrees to receive evacuating residents; and

(4) ensuring the PPE supplies recommended by the CDC, including face masks for droplet protection, N95 respirators, goggles or face shields, gloves, and gowns, are maintained and available if evacuation is necessary.

§570.503.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a nursing facility (NF) must have a plan for regularly monitoring for and implementing federal, state, and local guidance related to the contagious disease outbreak, epidemic, or pandemic.

(b) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a NF must:

(1) maintain infection prevention and control measures if evacuation is necessary;

(2) maintain infection prevention and control measures if sheltering in place is necessary;

(3) maintain infection prevention and control measures if acting as a receiving NF for residents evacuating from other facilities; and

(4) ensure personal protective equipment (PPE) supplies recommended by the CDC, including face masks for droplet protection, N95 respirators, goggles, face shields, gloves, and gowns are maintained and available if evacuation is necessary.

(c) A NF must have a protocol for receiving deliveries. This protocol must comply with any CDC guidance in place.

(d) Each NF must develop and implement a communication plan to communicate the following information to current and prospective residents, residents' representatives, each resident's designated emergency contact, and all NF staff:

(1) when a resident or staff member with a positive case of the contagious disease is identified by the NF;

(2) infection control policies, including cohorting and quarantine protocols;

(3) current visitation and activities policies and procedures; and

(4) alternate methods of visitation that will be available during times of restricted visitation.

(e) A NF must have a plan to address how the facility will communicate with residents, residents' representatives, and a resident's designated emergency contact. The plan must also include:

(1) frequency of communications when there is a contagious disease outbreak;

(2) the primary point of contact at the NF for questions and information;

(3) how residents, resident representatives, and resident's designated emergency contact can contact the primary point of contact; and

(4) the method of communication a NF will use to communicate changes in visitation policies at the NF.

§570.505.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, a nursing facility (NF) must conduct routine testing, if testing is available, of all staff and residents for the disease causing the outbreak, epidemic, or pandemic in accordance with guidance issued by the Centers for Medicare and Medicaid Services (CMS), CDC, HHSC, or DSHS.

(b) During a contagious disease outbreak, a NF must test all residents and staff with signs and symptoms of the illness, if testing is available, in accordance with guidance issued by CMS, CDC, HHSC, or DSHS.

(c) A NF must develop and implement protocols for residents and staff who refuse testing.

(d) A NF must:

(1) monitor residents and staff for signs and symptoms of the disease causing the outbreak, epidemic, or pandemic;

(2) monitor residents and staff for any possible exposures to the disease causing the outbreak, epidemic, or pandemic; and

(3) activate the infection prevention and control program specific to emerging contagious diseases, epidemics, and pandemics required by §570.501 of this subchapter (relating to Planning for Outbreak, Epidemic, or Pandemic) if:

(A) a positive case of the disease causing the outbreak, epidemic, or pandemic is identified in a resident or staff;

(B) a resident or staff is exhibiting symptoms of the disease causing the outbreak, epidemic, or pandemic; or

(C) there is a suspected or known exposure of a resident or staff to a person with a positive case of the disease causing the outbreak, epidemic, or pandemic.

§570.507.Reporting.

(a) A nursing facility (NF) must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or the DSHS.

(b) A NF must comply with a request from HHSC to submit data related to cases of the contagious disease in the facility.

(c) A NF must inform residents, resident representatives, and the families of residents by 5:00 p.m. the next calendar day following the occurrence of a positive case of the contagious disease among residents or staff. The NF must not include personally identifiable information in such information.

§570.509.Screening.

(a) During a contagious disease outbreak, epidemic, or pandemic, a nursing facility (NF) must screen all visitors prior to allowing them to enter the NF, except emergency services personnel entering the NF or facility campus in an emergency. Visitor screenings must be documented in a log kept at the entrance to the NF, which must include the name of each person screened, the date and time of the screening, and the results of the screening. The visitor screening log may contain protected health information and must be protected in accordance with applicable state and federal law. Visitors who fail the screening must not enter the NF.

(b) The following screening criteria shall be used for visitors, staff, and residents:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the visitor is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) A NF must screen all staff at the beginning of each shift for the criteria in subsection (b) of this section prior to allowing them to enter the NF.

(d) Staff who do not pass screening must immediately leave the NF and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(e) During a contagious disease outbreak, epidemic, or pandemic, a NF must screen residents at least once per day for the criteria in subsection (b) of this section. Residents who do not pass screening must be quarantined immediately, monitored, and tested according to any guidance issued by the CDC, HHSC, or DSHS. A resident has the right to refuse testing.

(f) A NF must allow persons providing critical assistance, including essential caregivers, to enter the NF if they pass the screening criteria in subsection (b) of this section.

(g) A NF may not prohibit entry of persons with legal authority to enter when performing their official duties, unless they do not pass the screening in subsection (b) of this section.

(h) A NF must post signage at all entrances of the facility prohibiting persons, other than emergency services personnel providing emergency services, from entering the facility prior to being screened.

§570.511.Staff Requirements.

(a) A nursing facility (NF) must maintain adequate staffing to meet the needs of all residents, including those in isolation and quarantine.

(b) A NF must have a staffing plan in place that includes the following:

(1) staff designated to each area of the NF;

(2) staff in each area of the NF are trained to provide care to residents in their assigned area;

(3) supervision of staff in each area of the NF;

(4) during a contagious disease outbreak, epidemic, or pandemic, staff who work in multiple facilities are assigned to the same cohort in each facility they work in; and

(5) a staffing contingency plan to maintain adequate staffing in the event multiple staff are out due to illness.

(c) A NF must provide training to each staff member and document the training. The training must include:

(1) providing care to residents in isolation;

(2) providing care to residents in quarantine;

(3) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the NF;

(B) providing care to residents who are negative status, positive status, or unknown status; and

(C) providing care to residents exhibiting symptoms and awaiting test results;

(4) proper donning, doffing, and use of PPE;

(5) proper cleaning and disinfecting procedures;

(6) the NF's infection control plans;

(7) the NF's emergency preparedness plans;

(8) standard assessment protocols; and

(9) enhanced assessment protocols to be implemented when quarantine or isolation are necessary.

§570.513.Visitation.

(a) A nursing facility's visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the Centers for Medicare and Medicaid Services (CMS), HHSC, or DSHS. Nursing facility (NF) visitation policies and procedures may not be more restrictive than directives issued by CMS, HHSC, DSHS, executive orders, or local orders.

(b) A NF must permit clergy to visit a resident at the request of the resident.

(c) A NF may not prohibit a resident from receiving in-person visitation with a religious counselor during a public health emergency on request from the resident, resident's legally authorized representative (LAR), or resident's family member. A NF may prohibit in-person visitation with a religious counselor if a federal law or a federal agency requires the facility to prohibit in-person visitation during a public health emergency.

(d) A NF must adopt policies and procedures for in-person visitation with a religious counselor during a contagious disease outbreak, epidemic, or pandemic. These policies and procedures:

(1) must comply with the minimum health and safety requirements for in-person visitation with religious counselors developed by HHSC;

(2) may include reasonable time, place, and manner restrictions on in-person visitation with religious counselors to:

(A) mitigate the spread of a communicable disease; and

(B) address the resident's medical condition;

(3) must include special consideration for residents receiving end of life care; and

(4) may require religious counselors to comply with a NF's guidelines, policies, and procedures for in-person visitation with a religious counselor.

(e) A NF may allow salon services visits. A NF must establish policies and procedures in response to a contagious disease outbreak, epidemic, or pandemic, based on guidance issued by CDC, CMS, HHSC, or DSHS, that provide conditions for a salon services visit to occur.

(f) A NF must permit end of life visits and immediately communicate any changes in a resident's condition that would qualify the resident for end of life visits to the resident representative.

§570.514.Essential Caregiver Visits.

(a) A resident or the resident's legally authorized representative (LAR), if the resident is unable, has the right to designate at least one essential caregiver.

(b) A nursing facility (NF) must permit essential caregiver visits.

(c) A NF must allow essential caregiver visits to occur outdoors, in the resident's bedroom when possible, or in another area upon request by a resident or resident's LAR.

(d) A NF must develop a visitation policy that permits an essential caregiver to visit the resident for at least two hours each day.

(e) A NF must have procedures in place to enable physical contact between the resident and the essential caregiver.

(f) A NF must develop safety protocols for essential caregiver visits. The safety protocols may not be more stringent for essential caregivers than safety protocols for staff.

(g) A NF must obtain the signature of the essential caregiver certifying that the essential caregiver will follow the NF's safety protocols for essential caregiver visits.

(h) A NF may revoke an essential caregiver designation if the caregiver violates the NF's safety protocols or rules adopted under this chapter.

(i) If A NF revokes a person's designation as an essential caregiver under subsection (h) of this section:

(1) the resident or the resident's LAR has the right to immediately designate another person as the essential caregiver;

(2) within 24 hours after the revocation, the facility must inform the resident or the resident's LAR, in writing, of the right to appeal the revocation and the procedures for filing an appeal with the Texas Health and Human Services Commission (HHSC) Appeals Division by:

(A) email at OCC_Appeals_ContestedCases@hhs.texas.gov; or

(B) mail at HHSC Appeals Division, P.O. Box 149030, MC W-613, Austin, TX 78714-9030; and

(3) the NF must comply with a hearing officer's decision regarding an appeal of an essential caregiver revocation.

(j) A NF may petition HHSC to suspend in-person essential caregiver visits for no more than seven consecutive calendar days if in-person visitation poses a serious community health risk. A NF may request an extension from HHSC to suspend in-person essential caregiver visitation beyond the NF's original request, but HHSC may not approve an extension for a period that exceeds seven days and a NF must separately request each extension. HHSC may deny the NF's original request to suspend in-person essential caregiver visitation or the NF's extension request if HHSC determines that in-person visitation does not pose a serious community health risk.

(k) A NF may not suspend in-person essential caregiver visits in a calendar year for a time period that:

(1) is more than 14 consecutive days; or

(2) is more than a total of 45 days.

§570.515.Resident Assessment and Monitoring.

(a) During a contagious disease outbreak, epidemic, or pandemic, a nursing facility (NF) must continue to conduct resident assessments according to §554.801 of this title (relating to Resident Assessment).

(b) A NF must have a plan to increase the frequency of resident monitoring for signs and symptoms of the disease-causing agent when a positive case of the contagious disease in a resident or staff is identified in the NF.

(c) An assessment must address a resident's physical, mental, and psychosocial well-being and needs during the contagious disease outbreak, epidemic, or pandemic.

(d) A NF must update the baseline or comprehensive care plan for a resident according to §554.802 of this title (relating to Comprehensive Person-Centered Care Planning).

(1) The updated care plan must address a resident's physical, mental and psychosocial needs.

(2) The updated care plan must address both virtual visitation and in-person visitation, including frequency of such visits, based on the resident's assessment required by subsection (a) of this section, and according to §554.413 of this title (relating to Access and Visitation Rights).

§570.517.Continuity of Facility Operations.

(a) A nursing facility (NF) must have policies and procedures to accomplish the following:

(1) designating an isolation area for residents with a contagious disease;

(2) designating a quarantine area for residents with unknown status;

(3) designating an area for residents who do not require isolation or quarantine;

(4) designating an area for the storage of personal protective equipment (PPE), an area for donning PPE, and an area for doffing PPE;

(5) implementing infection prevention and control for shared spaces in areas of A NF that do not include a separate nursing service area, including a nurses' station, a staff lounge area and restroom, lockers or security compartments for the safekeeping of the personal effects of staff, a clean utility room, and a soiled utility room;

(6) ensuring enough space for physical distancing needs related to the contagious disease outbreak, epidemic, or pandemic; and

(7) designating entrances and exits for each area, as well as travel routes to minimize spread of contagious diseases.

(b) If a NF identifies a contagious disease outbreak, epidemic, or pandemic, it must take the following precautions for communal dining:

(1) If staff assistance is required during dining, a NF must ensure staff use appropriate PPE and hand hygiene between assisting each resident.

(2) A NF must ensure cleaning and disinfection of all surfaces, furniture, and items that might be used by more than one person between every use of the communal dining area, according to CDC guidance.

(3) A NF must limit participation in communal dining to residents who do not have an active infection or who are not in quarantine.

(4) A NF must ensure furniture and seating are arranged to maintain a physical distance as needed related to the contagious disease outbreak, epidemic, or pandemic. A NF must take into consideration preferences for married residents, who may choose not to physically distance.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104363

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER G. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

26 TAC §§570.601, 570.603, 570.605, 570.607, 570.609, 507.611, 570.613

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.601.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) This subchapter applies to an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) licensed under Chapter 551 of this title (relating to Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions) or exempt from licensure under Texas Health and Safety Code §252.003.

(b) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, an ICF/IID must regularly check federal, state, and local guidance.

(c) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, an ICF/IID must:

(1) maintain infection control measures when:

(A) evacuation is necessary;

(B) sheltering in place is necessary; or

(C) receiving individuals evacuating from another facility that has positive cases;

(2) have a transportation plan;

(3) maintain a 90-day supply of personal protective equipment (PPE), including facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns. Each facility determines what a 90-day supply is based on the CDC burn rate methodology; and

(4) ensure PPE for staff and individuals is available in the event of an evacuation.

(d) An ICF/IID must have protocol for receiving deliveries. This protocol must comply with any CDC guidance in place.

(e) An ICF/IID must have a communication plan to communicate the following information with individuals, individuals' representatives, and families:

(1) when a positive case is identified by the facility;

(2) current visitation and activities policies and procedures;

(3) alternate methods of visitation that will be available during times of restricted visitation; and

(4) the primary point of contact at the facility for questions and information and how individuals, an individuals' representatives, and families can reach the primary point of contact.

§570.603.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, the intermediate care facility must have a testing strategy for all staff and individuals if required by the CDC, HHSC, or DSHS.

(b) An intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) must develop a protocol for individuals and staff who refuse testing.

(c) An ICF/IID must:

(1) screen individuals and staff for signs and symptoms;

(2) screen individuals and staff for any possible exposures; and

(3) activate outbreak infection control measures if:

(A) a positive case is identified in an individual or staff;

(B) an individual or staff is exhibiting related symptoms; and

(C) there is a suspected or known exposure of an individual or staff to a positive case.

§570.605.Reporting.

(a) An intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or the DSHS.

(b) An ICF/IID must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) An ICF/IID must inform facility staff, individuals, individual's representatives, individual's designated emergency contacts, or responsible parties of those residing in facilities by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among individuals or staff. The ICF/IID must not include personally identifiable information.

§570.607.Screening.

(a) An intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) must screen all visitors prior to allowing them to enter the ICF/IID, except emergency services personnel entering the ICF/IID or ICF/IID campus in an emergency. Visitors who fail the screening must not enter the ICF/IID.

(b) The following screening criteria shall be used for visitors, staff, and individuals:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicative that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) An ICF/IID must document, in writing, all persons who enter the building in a log kept at the entrance of the ICF/IID and include the date, the person's name, current contact information, and data from the screening. The screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(d) An ICF/IID must screen all staff at the beginning of each shift prior to allowing them to enter the ICF/IID in accordance with subsection (b) of this section.

(e) Staff who do not pass screening must leave the ICF/IID and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(f) An ICF/IID must screen individuals in accordance with guidance from HHSC or DSHS.

(g) Individuals who do not pass screening or refuse to be screened must be quarantined and monitored in accordance with HHSC, DSHS, and CDC guidance.

(h) An ICF/IID must allow persons providing critical assistance to enter the facility, including essential caregivers, if they pass the screening criteria in subsection (b) of this section. An ICF/IID may not prohibit entry of persons with legal authority to enter when performing their official duties.

(i) An ICF/IID must post signage at all entrances of the ICF/IID reminding individuals not to enter the ICF/IID prior to being screened.

§570.609.Staff Requirements.

(a) Each intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) must ensure staffing levels are adequate to meet the needs of all individuals, including those in isolation and quarantine.

(b) Each ICF/IID must have a staffing plan in place that:

(1) ensures staff are trained to provide care to individuals in their assigned cohort;

(2) ensures supervision of staff in each cohort of the ICF/IID; and

(3) includes a staffing contingency plan to ensure adequate staffing in the event multiple staff are out due to illness.

(c) Each ICF/IID must have at least one staff member responsible for coordinating infection control protocol.

(d) Each ICF/IID must document that training was provided to each staff member and the training topics included:

(1) providing care to individuals in isolation;

(2) providing care to individuals in quarantine;

(3) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) each area of the facility;

(B) providing care to individuals who are negative status, positive status, and unknown status; and

(C) providing care to residents exhibiting symptoms and awaiting test results;

(4) proper donning and doffing of PPE;

(5) proper cleaning and disinfecting procedures;

(6) the ICF/IID's infection control plans; and

(7) the ICF/IID's emergency preparedness plans.

§570.611.Visitation.

(a) An intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, DSHS, or HHSC. ICF/IID visitation policies and procedures may not be more restrictive than directives issued by the CDC, HHSC, DSHS, executive orders, or local orders.

(b) An ICF/IID must permit clergy to visit an individual at the request of the individual.

(c) An ICF/IID may prohibit in-person visitation with a religious counselor during a public health emergency if a federal law or federal agency requires the facility to prohibit in-person visitation during that period.

(d) An ICF/IID may allow salon services visits. An ICF/IID must establish policies and procedures in response to a contagious disease outbreak, epidemic, or pandemic based on guidance issued by the CDC, HHSC, or DSHS that provide conditions for a salon visit to occur.

(e) An ICF/IID must permit end of life visits and immediately communicate any changes in an individual's condition that would qualify the individual for end of life visits to the individual's representative.

§570.613.Essential Caregiver Visits.

(a) An individual, or the individual's legally authorized representative (LAR), if the individual is unable, has the right to designate an essential caregiver.

(b) An intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) must permit essential caregiver visits.

(c) An ICF/IID must develop a visitation policy that permits an essential caregiver to visit the individual for at least two hours each day.

(d) An ICF/IID must have procedures in place to enable physical contact between the individual and the essential caregiver.

(e) An ICF/IID must develop safety protocols for essential caregiver visits. The safety protocols may not be more stringent for essential caregivers than safety protocols for staff.

(f) An ICF/IID must obtain the signature of the essential caregiver certifying that the essential caregiver will follow the ICF/IID's safety protocols for essential caregiver visits.

(g) An ICF/IID may revoke an essential caregiver designation if the caregiver violates the facility's safety protocols or rules adopted under this chapter.

(h) If an ICF/IID revokes a person's designation as an essential caregiver under subsection (g) of this section:

(1) the individual or the individual's legally authorized representative has the right to immediately designate another person as the essential caregiver;

(2) within 24 hours after the revocation, the ICF/IID must inform the individual or the individual's LAR, in writing, of the right to an appeal the revocation and the procedures for filing an appeal with the Texas Health and Human Services Commission (HHSC) Appeals Division by:

(A) email at OCC_Appeals_ContestedCases@hhs.texas.gov; or

(B) mail at HHSC Appeals Division, P.O. Box 149030, MC W-613, Austin, TX 78714-9030; and

(3) the ICF/IID must comply with a hearing officer's decision regarding an appeal of an essential caregiver revocation.

(i) An ICF/IID may petition HHSC to suspend in-person essential caregiver visits for no more than seven consecutive calendar days if in-person visitation poses a serious community health risk. An ICF/IID may request an extension from HHSC to suspend in-person essential caregiver visitation beyond the ICF/IID's original request, but HHSC may not approve an extension for a period that exceeds seven days and an ICF/IID must separately request each extension. HHSC may deny the ICF/IID's original request to suspend in-person essential caregiver visitation or the ICF/IID's extension request if HHSC determines that in-person visitation does not pose a serious community health risk.

(j) An ICF/IID may not suspend in-person essential caregiver visits in a calendar year for a time period that:

(1) is more than 14 consecutive days; or

(2) is more than a total of 45 days.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104364

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER H. HOME AND COMMUNITY-BASED SERVICES

26 TAC §§570.701, 570.703, 570.705, 570.707, 570.709, 570.711, 570.713

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.701.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a program provider must regularly check federal, state, and local guidance related to the contagious disease outbreak, epidemic, or pandemic.

(b) During a contagious disease outbreak, epidemic, or pandemic, a program provider must maintain infection control measures when either evacuation or sheltering in place is necessary.

(c) Each program provider must have a communication plan that identifies a primary point of contact for questions and information and how individuals, individual's legally authorized representatives (LAR), and families can reach that point of contact.

(d) During a contagious disease outbreak, epidemic, or pandemic, a program provider must maintain a 90-day supply of personal protective equipment (PPE), including surgical facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns. The 90-day supply is based on the CDC burn rate methodology.

(e) A program provider must ensure staff use appropriate PPE while providing services to individuals.

(f) A program provider must ensure individuals have appropriate PPE to use during the provision of services.

(g) A program provider must activate outbreak infection control measures if:

(1) a positive case is identified in an individual or staff;

(2) an individual or staff is exhibiting related symptoms; and

(3) there is a suspected or known exposure of an individual or staff to a positive case.

(h) A program provider must have a protocol for receiving deliveries. This protocol must comply with any CDC guidance in place.

§570.703.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, the program provider must have a testing strategy for all staff and individuals if required by the CDC, HHSC, or DSHS.

(b) A program provider must inform an individual or an individual's legally authorized representative (LAR) of the right to refuse testing and document the individual or LAR's choice.

§570.705.Reporting.

(a) A program provider must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or the DSHS.

(b) A program provider must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A program provider must inform staff, individuals, individual representatives, individual's designated emergency contacts, or responsible parties of those residing in a residence by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among individuals or staff. The program provider must not include personally identifiable information.

§570.707.Screening.

(a) If required by the Centers for Disease Control and Prevention (CDC), HHSC, or DSHS, a program provider must screen all visitors outside of the residence prior to allowing them to enter, except emergency services personnel entering the residence in an emergency. Visitors who fail the screening must not enter the residence.

(b) The following screening criteria shall be used for visitors and program provider staff:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicating that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(c) Program provider staff must document all persons entering the residence in a log, which must include the name of each person screened, the date and time of the screening, and the results of the screening. The visitor screening log may contain protected health information and must be protected in accordance with applicable state and federal law.

(d) A program provider must screen all staff at the beginning of each shift prior to allowing them to enter the residence in accordance with subsection (b) of this section.

(e) Staff who do not pass screening must not enter the residence and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

(f) A program provider must not prohibit an individual who lives in the residence from entering the residence even if the individual meets any of the screening criteria.

(g) A program provider must allow persons with legal authority to enter and providers of essential services to enter the residence if they pass the screening as required by subsection (b) of this section.

§570.709.Staff Requirements.

(a) Each program provider must maintain adequate staffing levels to meet the needs of all individuals.

(b) Each program provider must have a staffing plan in place that:

(1) ensures staff are trained to provide care to individuals; and

(2) a staffing contingency plan to ensure adequate staffing in the event multiple staff are out due to illness.

(c) Each program provider must have at least one staff member per program provider responsible for coordinating the infection control protocol.

(d) Each program provider must document that training was provided to each staff member and that the training topics included:

(1) providing care to individuals;

(2) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) providing care to individuals who are negative status, positive status, and unknown status; and

(B) providing care to individuals exhibiting symptoms and awaiting test results;

(3) proper cleaning and disinfecting procedures;

(4) the program provider's infection control plans; and

(5) the program provider's emergency plan.

§570.711.Visitation.

(a) This section does not apply to host home/companion care, unless otherwise specified.

(b) A program provider's visitation policies and procedures may change during a contagious disease outbreak, epidemic, or pandemic in response to directives issued by the CDC, HHSC, or DSHS. A program provider's visitation policies and procedures may not be more restrictive than directives issued by HHSC, DSHS, executive orders, or local orders.

(c) A program provider must permit clergy to visit an individual at the request of the individual.

(d) A program provider may prohibit in-person visitation with a religious counselor during a public health emergency if a federal law or federal agency requires the residence to prohibit in-person visitation during that period.

(e) A program provider may allow salon services visits. A program provider must establish policies and procedures in response to a contagious disease outbreak, epidemic, or pandemic based on guidance issued by the CDC, HHSC, or DSHS that provide conditions for a salon visit to occur.

(f) A program provider must permit end of life visits and immediately communicate any changes in an individual's condition that would qualify the individual for end of life visits to the individual's representative.

§570.713.Essential Caregiver Visits.

(a) An individual, or individual's legally authorized representative (LAR), if the individual is unable, has the right to designate an essential caregiver.

(b) A program provider must permit essential caregiver visits.

(c) A program provider must develop a visitation policy that permits an essential caregiver to visit the individual for at least two hours each day.

(d) A program provider must have procedures in place to enable physical contact between the individual and the essential caregiver.

(e) A program provider must develop safety protocols for essential caregiver visits. The safety protocols may not be more stringent for essential caregivers than safety protocols for staff.

(f) A program provider must obtain the signature of the essential caregiver certifying that the essential caregiver will follow the program provider's safety protocols for essential caregiver visits.

(g) A program provider may revoke an essential caregiver designation if the caregiver violates the program provider's safety protocols or rules adopted under this chapter.

(h) If a program provider revokes a person's designation as an essential caregiver under subsection (g) of this section:

(1) the individual, or individual's LAR, has the right to immediately designate another person as the essential caregiver;

(2) within 24 hours after the revocation, the program provider must inform the individual or the individual's legally authorized representative, in writing, of the right to an appeal the revocation and the procedures for filing an appeal with the Texas Health and Human Services Commission (HHSC) Appeals Division by:

(A) email at OCC_Appeals_ContestedCases@hhs.texas.gov; or

(B) mail at HHSC Appeals Division, P.O. Box 149030, MC W-613, Austin, TX 78714-9030; and

(3) a program provider must comply with a hearing officer's decision regarding an appeal of an essential caregiver revocation.

(i) A program provider may petition HHSC to suspend in-person essential caregiver visits for no more than seven consecutive calendar days if in-person visitation poses a serious community health risk. A program provider may request an extension from HHSC to suspend in-person essential caregiver visitation beyond the program provider's original request, but HHSC may not approve an extension for a period that exceeds seven days and a program provider must separately request each extension. HHSC may deny the program provider's original request to suspend in-person essential caregiver visitation or the program provider's extension request if HHSC determines that in-person visitation does not pose a serious community health risk.

(j) A program provider may not suspend in-person essential caregiver visits in a calendar year for a time period that:

(1) is more than 14 consecutive days; or

(2) is more than a total of 45 days.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104366

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161


SUBCHAPTER I. TEXAS HOME LIVING

26 TAC §§570.801 - 570.803, 570.805, 570.807

STATUTORY AUTHORITY

The new sections are authorized by: Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §§142.0011 and 142.012, which provide that the Executive Commissioner of HHSC shall adopt rules protecting the quality of care and quality of life of HCSSA clients and necessary to implement Chapter 142, respectively; Texas Health and Safety Code §242.001, which states that the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility, and Texas Health and Safety Code §242.037, which requires the Executive Commissioner of HHSC to make and enforce rules prescribing the minimum standards relating to quality of life, quality of care, and resident rights for nursing facility residents; Texas Health and Safety Code §§247.025 and 247.026, which provide that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 247 and ensure the quality of care and protection of residents' health and safety, respectively; Texas Health and Safety Code §248A.101, which requires the Executive Commissioner of HHSC to adopt rules necessary to implement Chapter 248A and protect the health, safety, and comfort of the minors serviced by a PPECC; Texas Health and Safety Code §252.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary to implement Chapter 252; Human Resources Code §103.004, which requires the Executive Commissioner of HHSC to adopt rules for implementing Chapter 103 and set standards for the health and welfare of persons attending a DAHS facility; Texas Human Resources Code §32.021, which provides that the Executive Commissioner of HHSC shall adopt rules for the proper and efficient operation of the medical assistance program; and Health and Safety Code §260B(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist facilities and program providers in establishing essential caregiver visitation policies and procedures; and Texas Health and Safety Code §260C(b), which requires the Executive Commissioner of HHSC to by rule develop guidelines to assist health care facilities in establishing in-person religious counselor visitation policies and procedures.

The new sections implement Texas Government Code §531.0055; Health and Safety Code §§142.0011, 142.012, 242.001, 242.037, 247.025, 247.026, 248A.101, 252.008, 260B(b), and 260C(b); and Human Resources Code §§32.021 and 103.004.

§570.801.Emergency Response to Outbreak, Epidemic, or Pandemic.

(a) During a contagious disease outbreak, epidemic, or pandemic, whether or not a public health emergency has been declared, a Texas Home Living program provider must regularly check federal, state, and local guidance related to the contagious disease outbreak, epidemic, or pandemic.

(b) During a contagious disease outbreak, epidemic, or pandemic, a program provider must maintain infection control measures when either evacuation or sheltering in place is necessary.

(c) Each program provider must have a communication plan that identifies a primary point of contact for questions and information and how individuals, individual's legally authorized representatives (LAR), and families can reach that point of contact.

(d) During a contagious disease outbreak, epidemic, or pandemic, a program provider must maintain a 90-day supply of personal protective equipment (PPE), including surgical facemasks for droplet protection, N95 masks, goggles, face shields, gloves, and gowns. The 90-day supply is based on the CDC burn rate methodology.

(e) A program provider must ensure staff use appropriate PPE while providing services to individuals.

(f) A program must ensure individuals have appropriate PPE to use during the provision of services.

§570.802.Testing.

(a) During a contagious disease outbreak, epidemic, or pandemic, the program provider must have a testing strategy for all staff and individuals if required by the CDC, HHSC, or DSHS.

(b) A program provider must inform an individual or an individual's LAR of the right to refuse testing and document the individual or LAR's choice.

§570.803.Reporting.

(a) A program provider must report new positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic to HHSC in accordance with any guidance issued by HHSC or DSHS.

(b) A program provider must comply with a request from HHSC to submit data related to positive cases of the contagious disease that caused the outbreak, epidemic, or pandemic.

(c) A program provider must inform staff, individuals, individual representatives, individual's designated emergency contacts, or responsible parties of those residing in a residence by 5:00 p.m. the next calendar day following the occurrence of a confirmed infection among individuals or staff. The program provider must not include personally identifiable information.

§570.805.Screening.

(a) Prior to staff providing any services to an individual, the staff must use the following screening criteria:

(1) signs or symptoms specific to the contagious disease that has caused the outbreak, epidemic, or pandemic;

(2) any other signs and symptoms as outlined by the CDC; or

(3) testing positive, indicative that the person is still in the infectious period related to the contagious disease outbreak, epidemic, or pandemic.

(b) If the individual does not pass the screening, staff must use appropriate personal protective equipment during the visit.

(c) A program provider must screen all service providers at the beginning of each shift prior to allowing the service provider to provide services to an individual.

(d) Staff who do not pass screening must not enter the home and not return until it is confirmed that they are not infectious or until they meet the criteria to discontinue quarantine or isolation.

§570.807.Staff Requirements.

(a) Each program provider must maintain adequate staffing levels to meet the needs of all individuals.

(b) Each program provider must have a staffing plan in place that:

(1) ensures staff are trained to provide care to individuals; and

(2) includes a staffing contingency plan to mitigate staffing shortages in the event multiple staff are unable to work due to illness or quarantine requirements in relation to the contagious disease outbreak, epidemic, or pandemic.

(c) Each program provider must have at least one staff member responsible for coordinating infection control protocol.

(d) Each program provider must document that training was provided to each staff member and that the training topics included:

(1) providing care to individuals in isolation or quarantine;

(2) proper use of personal protective equipment (PPE) including appropriate PPE use for:

(A) providing care to individuals who are negative status, positive status, and unknown status; and

(B) providing care to individuals exhibiting symptoms and awaiting test results;

(3) proper donning and doffing of PPE; and

(4) the program provider's infection control plans.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 29, 2021.

TRD-202104367

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 12, 2021

For further information, please call: (512) 438-3161